[Federal Register: April 23, 2008 (Volume 73, Number 79)] [Proposed Rules] [Page 22019-22044] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr23ap08-36] [[Page 22019]] ----------------------------------------------------------------------- Part II Department of Education ----------------------------------------------------------------------- 34 CFR Part 200 Title I--Improving the Academic Achievement of the Disadvantaged; Proposed Rule [[Page 22020]] ----------------------------------------------------------------------- DEPARTMENT OF EDUCATION 34 CFR Part 200 RIN 1810-AB01 [Docket ID ED-2008-OESE-0003] Title I--Improving the Academic Achievement of the Disadvantaged AGENCY: Office of Elementary and Secondary Education, Department of Education. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Secretary proposes to amend the regulations governing programs administered under Part A of Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA), to clarify and strengthen current Title I regulations in the areas of assessment, accountability, public school choice, and supplemental educational services. DATES: We must receive your comments on or before June 23, 2008. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments. Federal eRulemaking Portal: Go to http:// www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket is available on the site under ``How To Use This Site.'' Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about these proposed regulations, address them to Zollie Stevenson, Jr., U.S. Department of Education, 400 Maryland Avenue, SW., room 3W230, Washington, DC 20202-6132. Privacy Note: The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at http://www.regulations.gov. All submissions will be posted to the Federal eRulemaking Portal without change, including personal identifiers and contact information. FOR FURTHER INFORMATION CONTACT: Zollie Stevenson, Jr. at 202-260-1824. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Invitation to Comment We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program. During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 3W202, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays. Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Background The No Child Left Behind Act of 2001 (NCLB), which amended and reauthorized the ESEA, fundamentally changed the way States and local school districts help ensure that all students meet grade-level expectations or better. The law's core principles, particularly in Title I, guide the nation's conversation on education: annual assessments, publicly reported data, assistance for students and schools that fall behind, and accountability for results. NCLB's focus on accountability means that all States are now collecting better information to help schools, educators, policymakers, and parents make the best decisions for students. The Federal government has supported NCLB's implementation with significant resources: $165 billion in funding for NCLB from 2002 to 2008, including an increase of 40 percent in current dollars since 2001. This funding increase was accompanied by a philosophical change--that education is not just about how much we're spending, but about how well we're serving students. The 2007-2008 school year is the sixth full school year since the passage of NCLB. Throughout these six years, we carefully monitored the law's implementation. We gained valuable information from States, districts, and schools about how implementation of the law's requirements could be improved to ensure that all students reach proficiency in reading/language arts and mathematics by the 2013-2014 school year. For example, in the first several years following the passage of NCLB, we received frequent requests from States to provide additional flexibility to measure the achievement of students with disabilities and students with limited English proficiency (LEP) for purposes of adequate yearly progress (AYP) determinations. In response to these requests, the Department promulgated regulations to permit States to include in their AYP determinations the proficient and advanced scores of students with disabilities assessed based on alternate and modified academic achievement standards, as well as regulations that provide flexibility in the assessment of, and accountability for, recently arrived and former LEP students. During this time, States developed more sophisticated State data systems that now permit more accurate calculations of high school graduation rates, as well as the measurement of individual student academic growth from one year to the next. Higher-quality State accountability and assessment systems are in place thanks to the rigorous standards established under NCLB, the assessment and accountability peer review process, and most importantly, the hard work of the States. With these advancements, we believe that it is time to further amend and update our regulations to address certain key areas. Accordingly, these proposed regulations build on the [[Page 22021]] advancements of State accountability and assessment systems, while incorporating key feedback from the field into an even clearer vision of what it takes to educate each and every one of our Nation's schoolchildren. We want to ensure that these regulations are as effective as possible in advancing the key principles of NCLB and, therefore, want to provide the opportunity for as much public input on the proposed regulations as possible. The public will have 60 days to comment on these proposed regulations. We also will provide opportunities for public input during regional public meetings; the dates, times, and locations of these meetings will be announced in a separate notice in the Federal Register. These proposed regulations would clarify and strengthen current regulations in the areas of assessment, accountability, supplemental educational services (SES), and public school choice. Specifically, the proposed regulations address the following key areas: Assessing higher-order thinking skills through multiple measures. Increasing subgroup accountability. Ensuring that States and local educational agencies (LEAs) include State data from the National Assessment of Educational Progress (NAEP) on State and local report cards. Establishing a uniform and accurate method that States must use to calculate high school graduation rates and setting high school graduation rate goals for AYP purposes. Including disaggregated graduation rates in AYP calculations. Permitting the inclusion of measures of individual student academic growth in a State's definition of AYP. Creating a National Technical Advisory Council to advise the Secretary on complex issues related to State assessment and accountability systems. Identifying schools and LEAs for improvement. Ensuring that parents receive the information they need to exercise their public school choice and SES options. Providing information to the public about participation in SES and public school choice. Strengthening the requirements for schools in restructuring. Requiring States to be more transparent about how they monitor LEAs' implementation of SES and strengthening the evidence that States must consider when approving and monitoring SES providers. Using SES and school choice funds for parent outreach. Maximizing use of funds for public school choice-related transportation and SES. Issuing regulations that strengthen Title I implementation in these areas will help bring about higher-quality assessments and stronger accountability for results, as well as provide parents with the information they need to make informed decisions about public school choice and SES. We look forward to receiving your comments on these proposed regulations to ensure that they accomplish our intended objectives. Significant Proposed Regulations We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect. Section 200.2--State Responsibilities for Assessment Statute: Section 1111(b)(3)(C)(vi) of the ESEA states that assessments must involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding. Current Regulations: Section 200.2(b)(7) of the Title I regulations essentially repeats the statutory language. Proposed Regulations: Proposed Sec. 200.2(b)(7)(i) and (ii) would clarify that measures of student academic achievement may include multiple types of questions that range in complexity and reflect the cognitive concepts and processes in the State content standards within a single assessment, as well as multiple assessments within a subject area. Reasons: There has been some misunderstanding among parents, teachers, and administrators that student achievement, for purposes of accountability determinations under Title I, must be based on a single assessment. This is not true; in fact, the law requires that a State's assessment include ``multiple measures.'' The proposed language would clarify what is meant by this concept, which is included in the law to ensure that a State's assessment system measure the full range of cognitive complexity in the State's academic content standards. Assessments, therefore, should include items that measure both higher order thinking skills (e.g., reasoning, synthesis, analysis) as well as knowledge and recall items to assess the depth and breadth of mastery of a particular content domain. In so doing, States may use a single test or several tests, or rely on one item format or several item formats (such as multiple choice or constructed response). Specifically, the proposed regulatory changes would clarify that, to meet the requirement to use multiple measures, a State may also choose to develop an assessment that relies on a combination of question formats, so long as the assessment reflects the degree of complexity of the cognitive concepts and processes in the State content standards. Multiple assessments to measure student achievement in a subject area may also be used in order to assess mastery of the breadth of a particular content domain. For example, some States use reading and writing assessments to calculate AYP in reading/language arts; other States use algebra and probability assessments to calculate AYP for mathematics. These clarifications are necessary to ensure that States clearly understand that their assessments may include single or multiple item formats, and that they may use multiple assessments to measure a specific content domain; they do not impose new requirements or require States to change their current assessment systems. Section 200.7--Disaggregation of Data Statute: Section 1111(b)(2)(C)(v) of the ESEA requires a State to define AYP so that its annual measurable objectives apply to all students as well as to specific subgroups of students --that is, economically disadvantaged students; students from major racial and ethnic groups; students with disabilities; and LEP students. Section 1111(b)(2)(I) of the ESEA makes clear that, for a school or LEA to make AYP, all students as well as each subgroup of students must meet or exceed the State's annual measurable objectives. Sections 1111(h)(1)(C) and 1111(h)(2) require that States and LEAs report on their report cards academic achievement data disaggregated by these same subgroups. Sections 1111(b)(2)(C) and 1111(h)(1)(C) of the ESEA, however, do not require a State to use such disaggregated data for determining AYP or reporting achievement data by subgroup if the number of students in a subgroup is insufficient to yield statistically reliable information or if the results would reveal personally identifiable information about an individual student. Current Regulations: Section 200.7(a) prohibits a State from using disaggregated data for one or more subgroups to report achievement results or to identify schools in need of improvement, corrective action, or [[Page 22022]] restructuring if the number of students in a subgroup is insufficient to yield statistically reliable information. Accordingly, Sec. 200.7(a)(2) requires a State, using sound statistical methods, to determine and justify in its State Plan the minimum number of students sufficient to yield statistically reliable information for each purpose for which disaggregated data are used (e.g., for determining AYP and for reporting subgroup achievement on State and LEA report cards). Proposed Regulations: In determining a minimum subgroup size, a State must balance achieving statistical reliability with maximizing inclusion of subgroups for accountability purposes (consistent with the statutory requirements to hold schools and LEAs accountable for the achievement of specific subgroups). Thus, proposed Sec. 200.7(a)(2)(i)(B) would require a State, as it considers statistical reliability in setting its minimum subgroup size, to ensure, to the maximum extent practicable, that all student subgroups are included, particularly at the school level, for purposes of making accountability decisions. Proposed Sec. 200.7(a)(2)(ii) would require each State to revise its Consolidated State Application Accountability Workbook (which is part of the State Plan and is hereafter referred to as the Accountability Workbook) to include (1) an explanation of how the State's minimum subgroup size meets proposed Sec. 200.7(a)(2)(i); (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. Proposed Sec. 200.7(a)(2)(iii) would require each State to submit a revised Accountability Workbook that incorporates the information in proposed Sec. 200.7(a)(2)(ii) for technical assistance and peer review no later than six months after the effective date of the regulation. Reasons: One of the most significant aspects of NCLB is its focus on holding schools and LEAs accountable for the achievement of specific student subgroups. Prior to NCLB, the overall achievement of students in a school often masked the low achievement of certain subgroups of students. To ensure that schools and LEAs are held accountable for the achievement of all their students, NCLB specifically requires that specified student subgroups must meet a State's annual measurable objectives and other academic indicators in order for a school or LEA to make AYP. NCLB also requires that States and LEAs report to the public on the achievement of their student subgroups. These disaggregation requirements are tempered by the need to ensure statistical reliability and privacy. Thus, sections 1111(b)(2)(C)(v) and 1111(h)(1)(C) of the ESEA and current Sec. 200.7 do not require accountability determinations or reporting by student subgroup if the size of the subgroup is too small to yield statistically reliable results or would reveal personally identifiable information about individual students. Current Sec. 200.7(a)(1), therefore, requires a State to set a minimum subgroup size. A minimum subgroup size that is too small may yield unreliable data or reveal the identity of individual students. A minimum subgroup size, however, should be no larger than necessary to ensure the protection of privacy for individuals and to allow for statistically reliable results of the aggregate performance of the students who make up a subgroup. Moreover, the minimum subgroup size should be small enough to ensure the maximum inclusion of student subgroups in accountability decisions, consistent with the statutory requirements to disaggregate data. Some have argued that the heterogeneous nature of student populations requires a relatively large minimum subgroup size in order to reflect accurately the achievement of students in AYP determinations. We believe, however, that in many cases minimum subgroup sizes are larger than is necessary to ensure statistically reliable information; the result is that a large number of subgroups (e.g., low-income students, students in some racial or ethnic subgroups, LEP students, and students with disabilities) are excluded from school-level accountability determinations. Some estimates indicate that large minimum subgroup sizes result in nearly 2 million students (or about 1 in every 14 test scores) not being counted in NCLB subgroup accountability determinations at the school level and minority students are as much as seven times more likely than white students to have their scores excluded from school- level AYP subgroup calculations.\1\ Under the current regulations and statute, in order for a school to be held accountable for a student subgroup, the number of students in that subgroup must exceed the State-established minimum subgroup size. Logically, the larger a State's minimum subgroup size, the less likely students will constitute an accountability subgroup at the school level and, thus, the school would not be held accountable for the performance of that subgroup. --------------------------------------------------------------------------- \1\ Bass, F., Ziegler Dizon, N., & Feller, B. (2006, April 18). States Omit Minorities' School Scores. Associated Press. --------------------------------------------------------------------------- Setting minimum subgroup sizes that are statistically reliable has been a challenge for States. This challenge may stem from the fact that the concept of ``statistical reliability'' normally refers to the adequacy of a sample size to produce results with enough precision to meet the purpose of a study or report. The larger the sample drawn, the smaller the sampling error, variability, and confidence intervals around the estimate, and the higher the resulting precision of the estimate. However, under NCLB, all students in the tested grades are required to be assessed. Therefore, in the NCLB context, statistical reliability is obtained through the requirement to test the population of students while addressing concerns about instability of scores in small subgroups by using a minimum subgroup size. The use of a minimum subgroup size is not as much a ``sampling'' issue, as it is a protection to minimize the instability of scores that may occur when there are a small number of scores in a population. A minimum subgroup size mitigates the instability of scores and reduces the likelihood that an extreme score (high or low) will positively or negatively affect the overall score for the subgroup. There have been a number of developments in State assessment and accountability systems since NCLB was enacted and Accountability Workbooks were first approved. These developments have provided States the opportunity to be more precise, consistent, and transparent in the application of statistical reliability concepts under NCLB. Specifically, when NCLB was enacted, most States did not yet assess all students in grades three through eight and once in the high school grade span as required under NCLB. Now, virtually all students in all required grades are assessed; therefore, test scores generally reflect actual proficiency levels of schools rather than estimates based on the scores of students in one grade. States also have more options to accurately assess student learning, particularly for students with disabilities and LEP students. In addition, States have made tremendous advances in their abilities to gather and analyze student [[Page 22023]] achievement data. These advances help States strike a more optimal balance between reasonable subgroup accountability and inclusion of the maximum number of students in school-level AYP determinations. For these reasons, the proposed regulations would require a State to ensure that its minimum subgroup size is large enough to produce statistically reliable information for all purposes for which disaggregated data are used (e.g., the use of data for reporting and making accountability decisions) yet limited to the smallest number possible in order to maximize the inclusion of student subgroups in accountability decisions. Furthermore, while the proposed regulations would not require a specific minimum subgroup size, they would require each State to revise its Accountability Workbook to explain how the State's current or proposed minimum subgroup size meets Sec. 200.7(a)(2)(i). A State would also be required to explain how other elements of the State's AYP definition (such as the use of confidence intervals, performance indexes, and uniform averaging; the State's definition of full academic year), in concert with the State's minimum subgroup size, affect the statistical reliability of accountability determinations as well as impact the inclusion of all students and student subgroups in those 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. The proposed regulations would also require each State to include in its Accountability Workbook data on the number and percentage of students and subgroups that are excluded from school-level accountability decisions as a result of the various components of the State's AYP definition. Making this information available through a State's Accountability Workbook should enable the public to gain a better understanding of how schools are being held accountable for the performance of their students and student subgroups. Finally, we are proposing that each State submit its Accountability Workbook, incorporating the information required by the proposed regulations, for technical assistance and peer review. We believe this would be an appropriate time to again have outside experts examine all the factors that bear on the statistical reliability of and inclusion of students in States' accountability systems. This will help the Department determine whether those systems are designed to produce reliable accountability determinations that maximize the inclusion of students and student subgroups, particularly in school-level accountability determinations. The Department will work with the National Technical Advisory Council that would be established under the proposed regulations to develop appropriate guidelines for the peer review. Section 200.11--Participation in NAEP Statute: Section 1111(c)(2) of the ESEA requires States to participate in the National Assessment of Educational Progress (NAEP) in reading and mathematics for the fourth and eighth grades as a condition of receiving Title I funds, and section 1112(b)(1)(F) of the ESEA requires districts, if selected, to participate in the NAEP. The general authorization for the NAEP requirements is outlined in section 411 of the National Education Statistics Act of 1994 (20 U.S.C. 9010). Current Regulations: Section 200.11 requires each State that receives funds under Title I, part A of the ESEA to participate in biennial State NAEP academic assessments of fourth and eighth grade reading and mathematics. It also requires an LEA that receives these funds to participate, if selected, in the State NAEP assessments. Proposed Regulations: Proposed Sec. 200.11(c) would 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 its State assessments. It also would require an LEA to report the State NAEP assessment data on its report card. Reasons: The NAEP is the only nationally representative and continuing assessment of what America's students know and can do in various grades and subject areas and, therefore, is an important source of information about student achievement. We propose to require States and LEAs to include information on NAEP scores on the same report cards that provide data on the performance of students on State assessments to ensure that NAEP data are easily accessible and available to parents and the public and to provide them with a tool to compare how students in a State are performing on the NAEP with student performance on State assessments. The Department recognizes that simple comparisons of student performance on the NAEP and State assessments cannot be made without some understanding of the key differences between the two assessments. For example, the NAEP is not aligned with State academic content and achievement standards and, therefore, does not necessarily reflect the curriculum and instruction to which students are exposed in the classroom. Therefore, the Department encourages States to provide information to parents on how to interpret the NAEP and State data. When the NAEP assessment information is presented in the appropriate context, the Department believes information on how students in a State are performing on State assessments compared to their performance on the NAEP will provide for greater transparency and give parents another tool to assess the education system in their State. Section 200.19--Other Academic Indicators Statute: Section 1111(b)(2)(C) of the ESEA outlines the specific components that must be included in a State's definition of AYP. Subparagraph (vi) of that section specifically provides that a State's definition of AYP must include, in accordance with section 1111(b)(2)(D) of the ESEA, other academic indicators, and that the other academic indicator for high schools must be the graduation rate. (Graduation rate is generally defined in this section as the percentage of students who graduate from secondary school with a regular diploma in the standard number of years.) Section 1111(b)(2)(I)(i) of the ESEA further provides that, if any group of students identified in section 1111(b)(2)(C)(v) \2\ does not meet the annual measurable objectives in any particular year, the school, under what is commonly known as the ``safe harbor'' provision, is still considered to have made AYP for that year if the percentage of students in that group who did not meet or exceed the proficient level of academic achievement on the State assessment for that year decreased by 10 percent from the previous year, and that group made progress on one or more of the other academic indicators. --------------------------------------------------------------------------- \2\ These groups are: (1) All public elementary and secondary school students, (2) economically disadvantaged students, (3) students from major racial and ethnic groups, (4) students with disabilities, and (5) students with limited English proficiency. --------------------------------------------------------------------------- Current Regulations: Section 200.19(a)(1) of the regulations reflects the statutory requirements and requires States to use graduation rate as the other academic indicator for determining AYP for high schools. Under the current regulations, States have some flexibility in calculating graduation rates. States also have flexibility in setting [[Page 22024]] graduation rate goals or determining the improvement in graduation rates needed for a school or district to make AYP. Graduation rate is defined in the regulations as: (1) the percentage of students, measured from the beginning of high school, who graduate from high school with a regular diploma (not including an alternative degree, such as a General Educational Development (GED) credential or another type of certificate that is not fully aligned with the State's academic standards) in the standard number of years; or (2) another definition, developed by the State and approved by the Secretary in the State Plan, that more accurately measures the rate of student graduation from high school with a regular diploma. In defining graduation rate, the State must avoid counting a dropout as a transfer. Section 200.19(d)(1) states that a State may, but is not required to, hold schools and LEAs accountable for achieving higher goals on its other academic indicators, including, with respect to high schools, the graduation rate, over the course of the timeline established by the State under Sec. 200.15. Further, Sec. 200.20 provides that, in order for a school or LEA to make AYP, each subgroup of students must meet or exceed the State's annual measurable objectives and the State's goals for the other academic indicator. Section 200.19(d)(2)(i) requires a State to disaggregate its other academic indicators by subgroup for purposes of reporting under section 1111(h) of the ESEA and for using the ``safe harbor'' provision to determine AYP. Section 200.19(d)(2)(ii) states that a State need not disaggregate those indicators for determining AYP except as provided for in section 1111(b)(2)(C)(vii) (which permits States to establish any other academic indicators in addition to those required under section 1111(b)(2)(C)(vi)). Proposed Regulations: We propose several changes to the regulations regarding the use of high school graduation rate as the other academic indicator for determining AYP for high schools. Definition of graduation rate. Consistent with the definition adopted by the National Governors Association (NGA), and agreed to by all 50 governors in 2005, proposed Sec. 200.19(a)(1) would require States to use a uniform and accurate method of calculating graduation rates by defining graduation rate as 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 LEA would need 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. Proposed Sec. 200.19(a)(1)(i)(C)(2) would permit 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 (as is the case, for example, for a small number of students with disabilities or students in ``early college high schools'' who earn an associate's degree along with a high school diploma). A State that does not have in effect a system to accurately track transfers for calculation of the graduation rate defined in proposed Sec. 200.19(a)(1)(i) would be required to use the averaged freshman graduation rate (AFGR) on a transitional basis. The AFGR would be defined as the number of high school students who graduate in the standard number of years with a regular high school diploma divided by the number of students in the incoming freshman class four years earlier, which is estimated by averaging the enrollment of that freshman class with the enrollment of that class in eighth grade the prior year and in tenth grade the subsequent year. For any school or district that does not have an eighth grade, the AFGR would be estimated by averaging the enrollment of the freshman class with the enrollment of the tenth grade class in the subsequent year. The proposed regulations would not permit States to use the AFGR to calculate graduation rates after 2011-2012; after 2011-2012, all States would have to calculate graduation rates under proposed Sec. 200.19(a)(1). Graduation rate goals and continuous and substantial improvement measures. Proposed Sec. 200.19(d)(1) would provide two ways for States to determine whether their schools and LEAs meet the graduation rate component of AYP. Beginning in the 2008-2009 school year, in order for a high school or LEA to be considered to have met the other academic indicator for purposes of determining AYP, the school or LEA must either (1) meet a graduation rate goal, established by the State and approved by the Secretary that represents the rate the State expects all high schools to achieve; or (2) 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. Disaggregation of graduation rates. Proposed Sec. 200.19(e)(1) would require each State, no later than the 2012-2013 school year, to calculate the graduation rate at the school, LEA, and State levels in the aggregate and disaggregated by the subgroups in Sec. 200.13(b)(7)(ii) for reporting under section 1111(h) of the ESEA and for determining AYP. Proposed Sec. 200.19(e)(2)(i) and (ii) would require a State, prior to the 2012-2013 school year, to disaggregate the graduation rate data at the school, LEA, and State levels for reporting purposes and for determining ``safe harbor'' and at the LEA and State levels for determining AYP. Table 1 shows the proposed disaggregation requirements for determining AYP and for reporting AYP determinations. Table 1.--Graduation Rate Disaggregation Requirements ---------------------------------------------------------------------------------------------------------------- AFGR beginning school year 2008-2009 NGA no later than school year 2012- ---------------------------------------- 2013 --------------------------------------- Determining AYP Reporting Determining AYP Reporting ---------------------------------------------------------------------------------------------------------------- School.......................... No (except when Yes............... Yes............... Yes. determining ``safe harbor''). LEA............................. Yes............... Yes............... Yes............... Yes. State........................... Yes............... Yes............... Yes............... Yes. ---------------------------------------------------------------------------------------------------------------- [[Page 22025]] Reasons: There is an urgent need to improve America's high schools and ensure that all students graduate from high school ready for postsecondary instruction or the workforce. A uniform and accurate method of calculating graduation rates is needed to raise expectations and to hold schools, districts, and States accountable for increasing the number of students who graduate on time with a regular high school diploma. In addition, a uniform and accurate method of calculating high school graduation rates will improve our understanding of the scope and characteristics of those students dropping out of school or taking longer to graduate. Numerous reports and statistics from the U.S. Department of Labor (DOL) indicate the growing importance of a high school diploma. In its publication, America's Dynamic Workforce, DOL reported that 90 percent of the fastest-growing jobs require some form of postsecondary education.\3\ There also are increasing gaps in the unemployment rate and earnings between college graduates and high school dropouts. In 2006, the unemployment rate for high school dropouts age 25 and older was over three times the rate for college graduates (6.8 percent compared to 2.0 percent, respectively) and over 1.5 times the rate of individuals who had only a high school diploma (6.8 percent compared to 4.3 percent, respectively). Moreover, what DOL refers to as the ``education premium'' is increasing--in 2006, college graduates with a bachelor's or higher degree had median weekly earnings nearly 2.5 times greater than the typical high school dropout. Furthermore, college graduates have experienced growth in real median weekly earnings since 1979, while high school dropouts have seen their real median weekly earnings decline by about 20 percent.\4\ --------------------------------------------------------------------------- \3\ U.S. Department of Labor. (2007). America's Dynamic Workforce. Washington, DC: Author. Available at: http://www.dol.gov/ asp/media/reports/workforce2007/index.htm. \4\ Id. --------------------------------------------------------------------------- These statistics demonstrate the critical importance of having a high school diploma. Unfortunately, only about half of African American and Hispanic students graduate from high school on time with a regular high school diploma.\5\ Additionally, 15 percent of high schools in the country are producing over half of our dropouts--and yet nearly forty percent of these schools are making AYP because of inaccurate graduation rate calculations and a lack of accountability for all students.\6\ --------------------------------------------------------------------------- \5\ Belfanz, R., Legters, N., T.C. & Weber, L.M. (2007). Are NCLB's Measures, Incentives, and Improvement Strategies the Right One's for the Nation's Low-Performing High Schools? American Educational Research Journal, 44(3), 559-593. \6\ Id. --------------------------------------------------------------------------- Because the current regulations allow States latitude in determining how graduation rates are measured, the accuracy of State- calculated graduation rates varies considerably. Many States use some form of a ``completer rate'' (multiplication of dropout rates in each academic year) as their graduation rate. This rate has been shown to overestimate significantly high school graduation rates. The National Center for Education Statistics (NCES) calculated the AFGR for all States and compared the State-reported graduation rates to the AFGR. This analysis, published in the National Assessment of Title I Interim Report, shows that in some cases there is nearly a 30-point difference between a State's reported graduation rate and its AFGR.\7\ --------------------------------------------------------------------------- \7\ Stullich, S., Eisner, E., McCrary, J., & Roney, C. (2006). National Assessment of Title I Interim Report to Congress: Volume I: Implementation of Title I. Washington, DC: U.S. Department of Education, Institute of Education Sciences. Available at: http:// www.ed.gov/rschstat/eval/disady/titlelinterimreport/voll.pdf. --------------------------------------------------------------------------- The requirements States have established for determining whether a high school makes AYP with respect to its graduation rate also vary. One State, for example, has set its goal at 50 percent; another has set its goal at 95 percent. In addition, more than one-half of States accept any improvement or some established minimal improvement (e.g., 0.1 percent from the previous year) in their high school graduation rate to count as making AYP. In several States, a school can graduate less than half of its students, year after year, and still make AYP by graduating one more student with a regular high school diploma than it did in the previous year. The proposed regulations would revise current regulations to require the use of a uniform and accurate method of calculating high school graduation rates and would require schools and districts to either meet a State-established goal that has been approved by the Secretary or demonstrate continuous and substantial improvement from the prior year toward meeting or exceeding that goal. These changes are intended to increase the transparency and accuracy of graduation rates and strengthen accountability for the achievement of high school students. Following is the rationale for each of these changes. Definition of graduation rate. A uniform and accurate method of calculating high school graduation rates is necessary in order to provide parents and the public with important information about the success of a school, district, and State in graduating students in the standard number of years and to ensure that AYP determinations are based on valid graduation rate calculations. There is now a broad consensus about how to define the graduation rate. In August 2006, NCES released a report synthesizing the recommendations of a panel of experts on graduation rate calculations.\8\ The panel recommended that the standard graduation rate measure on-time completion of a regular diploma within four years and not include GED recipients or students without documentation of transferring to another educational program that terminates in the award of a regular high school diploma (e.g., documented through receipt of a transcript). Additionally, the NGA Task Force on High School Graduation Rate Data had as its lead recommendation that all States immediately adopt and begin taking steps to implement a standard four-year, adjusted cohort graduation rate, consistent with that proposed by the NCES panel (the ``NGA rate''), which 50 governors agreed to adopt in 2005.\9\ The proposed regulations offer a uniform and accurate method of calculating graduation rates that reflects this broad consensus in the field. --------------------------------------------------------------------------- \8\ Seastrom, M., Chapman, C., Stillwell, R., McGrath, D., Peltola, P., Dinkes, R., & Xu, Z. (2006). User's guide to Computing High School Graduation Rates. Washington, DC: U.S. Department of Education, National Center for Education Statistics. \9\ National Governors Association. (2006). Graduation Counts: A Report of the National Governors Association Task Force on High School Graduation Rate Data. Washington, DC: Author. --------------------------------------------------------------------------- To calculate the NGA rate, States need a system of documenting transfers as well as four years of data, or the equivalent of one full cohort. For States that do not yet have the ability to accurately track student transfers, NCES recommended using the AFGR as an interim measure. The AFGR estimates the effect of transfers into and out of a cohort of students and can be calculated with data currently available to States. It has been shown to be a reliable, accurate estimate of the high school graduation rate. The proposed regulations would provide time for States to transition to using the new definition of graduation rate. This transition period would allow all States sufficient time to develop a system for documenting transfers for one full cohort and subsequently to calculate the NGA rate. By 2012-2013, however, all States would be required to [[Page 22026]] use the more rigorous definition of graduation rate in proposed Sec. 200.19(a)(1). Graduation rate goals and continuous and substantial improvement measures. While some States only allow for schools to make AYP if a State-established goal is met, most States allow any improvement from the previous year or some established minimal improvement (ranging from 0.1 percent to 2.0 percent) for a school to demonstrate it has met AYP; one State simply requires schools to maintain the prior year's rate. Furthermore, many States have established low graduation rate goals (e.g., 50 percent) that are considered the threshold for AYP determinations--a school or LEA must meet that threshold in order to be considered to have made AYP and no improvement above that threshold is required. These methods of determining whether a school or LEA meets the graduation rate component of AYP represent exceptionally low expectations and demonstrate the need for States to establish graduation rate goals that are more rigorous. Accordingly, Sec. 200.19(d) would require a State to establish a graduation rate goal that it expects all high schools to eventually achieve and to establish requirements for demonstrating continuous and substantial improvement toward meeting or exceeding that goal, in order to make AYP. Given the ever-increasing importance of a high school diploma, allowing schools and LEAs with unacceptably low rates of graduation to make AYP by simply maintaining the same low rate or minimally increasing the number of graduates from the previous year does not provide for appropriate and meaningful accountability. Disaggregation of graduation rates. When the current regulations were written in 2002, the Department believed that permitting States to use aggregate graduation rate data for the purpose of determining AYP while requiring disaggregation for reporting would be sufficient to ensure school accountability for the achievement of all groups of students and would avoid overburdening State accountability systems. Six years later, we now know that simply reporting disaggregated graduation rate data is not sufficient to ensure that graduation rates improve for all students. As previously highlighted, too many schools are graduating too few students and not being held accountable for improving their performance in this important area. Moreover, it is evident that there are significant disparities in high school outcomes. For example, data provided by NCES show significant gaps in subgroup AFGR graduation rates. Data from the 2004-2005 school year show the average AFGR for white students is 80.4 percent, whereas the average AFGR for Hispanic, black, and Native American/Alaska Native students is 64.2 percent, 60.3 percent, and 67.2 percent, respectively.\10\ With these figures, it is clear that disaggregated graduation rate data should be used for purposes of determining whether a high school or LEA makes AYP. Similar to the importance of disaggregating assessment results to ensure that high performance by a particular group of students does not mask low performance by another group of students, schools need to be held accountable for the differences in high school graduation rates among various groups of students. --------------------------------------------------------------------------- \10\ National Center for Education Statistics. (2008). Averaged Freshman Graduation Rates for Public School Students, 2004-05. Unpublished data. --------------------------------------------------------------------------- For these reasons, the proposed regulations would require, by the 2012-2013 school year, all States to include disaggregated graduation rates in State-, district-, and school-level AYP decisions. The Department, however, recognizes that, while disaggregated AFGR results are valid at the State and district levels, there is less confidence in the validity of disaggregated AFGR results at the school level. Therefore, beginning with the effective date of this regulation, States would be required to use disaggregated results for reporting and determining AYP at the State and district levels, but would only be required to use school-level disaggregated results for reporting purposes and determining AYP under the ``safe harbor'' provision. Beginning in 2012-2013, when all States would have to use the NGA graduation rate, disaggregated results would also be required in school-level AYP determinations. Section 200.20--Making Adequate Yearly Progress Statute: Section 1111(b)(2) of the ESEA sets out the requirements for calculating AYP, which is a measure of the percentage of students who are proficient in a school, LEA, and State. The AYP calculation method commonly referred to as a ``status model'' compares the achievement of one cohort of students against the test scores of the students in the previous year's class. Although Title I allows AYP to be determined using student progress with the ``safe harbor'' provision, the proficiency gains measured in that calculation do not look at individual student growth--it is still a cohort comparison. Currently, nine States are participating in a ``growth model'' pilot and are permitted to report their accountability results using measures of individual student growth that have been approved by the Department. North Carolina and Tennessee first used measures of individual student growth for the 2005-2006 school year; Alaska, Arizona, Arkansas, Delaware, Florida, and Iowa reported growth scores for the first time for the 2006-2007 school year.\11\ --------------------------------------------------------------------------- \11\ Ohio has received conditional approval, but has not yet implemented its proposal due to delayed State legislative changes necessary for implementation. --------------------------------------------------------------------------- Current Regulations: Section 200.20 implements the statutory requirements for determining AYP. Proposed Regulations: Proposed Sec. 200.20(h) would establish the criteria that a State must meet in order for the Secretary to permit a State, under the waiver authority of section 9401 of the ESEA, to establish and implement policies for incorporating individual student academic progress into the State's definition of AYP. A State that desires to incorporate individual student academic growth into its definition of AYP would be required to-- (a) Set annual growth targets that-- (1) Lead to all students, by school year 2013-2014, meeting or exceeding the State's proficient level of academic achievement on the State assessments under Sec. 200.2; (2) Are based on meeting the State's proficient level of academic achievement on the State's assessments under Sec. 200.2 and are not based on individual student background characteristics; and (3) Measure student achievement separately in mathematics and reading/language arts; (b) Ensure that all students who are tested using the State's assessments under Sec. 200.2 are included in the State's assessment and accountability systems; (c) Hold all schools and LEAs accountable for the performance of all students and the student subgroups described in Sec. 200.13(b)(7)(ii); (d) 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; [[Page 22027]] (e) Track student progress through a State-developed data system; (f) 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 as described in Sec. 200.19; and (g) 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. With the additions proposed in these regulations, a State could permit its LEAs and schools to make AYP by meeting (1) the State's proficiency targets, (2) growth targets, or (3) the ``safe harbor'' provision. A State's proposal to incorporate student academic growth in the State's definition of AYP will be peer reviewed under section 1111(e)(2) of the ESEA. Reasons: There is general consensus among teachers, administrators, researchers, and advocates that States should be permitted to include measures of individual student academic progress (that is, to use what is often described as a ``growth model'') when determining whether a school or district is making AYP. When NCLB was signed into law in 2002, few States had the data capacity to calculate individual student academic progress. With all States now testing annually in grades 3 through 8 and once in high school coupled with improved data systems in many States, States have a greater capacity to measure individual student academic progress. The Department believes that allowing States to include accurate measures of individual student academic progress in AYP calculations will still hold schools accountable for the achievement of all students to State academic achievement standards, while providing schools and teachers with useful information on how their students are progressing towards grade-level proficiency, which can ultimately lead to better instruction. Under these proposed regulations and section 9401 of the ESEA, therefore, schools and LEAs in States that incorporate individual student academic growth into their definition of AYP would be held accountable for improving individual students' achievement from one school year to the next. We encourage States that decide to incorporate individual student growth into their accountability systems to include in their data systems a teacher identifier to help track student achievement and teacher performance by class assignment. 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. Section 200.22--National Technical Advisory Council Statute: Section 1111(e) of the ESEA requires the Secretary to establish a peer review process to assist in the review of State Plans. Current Regulations: There are no current regulations related to this statutory requirement. Proposed Regulations: The proposed regulations in Sec. 200.22 would require the establishment of a National Technical Advisory Council (National TAC) to advise the Secretary on key technical issues related to State standards, assessments, and accountability systems that are part of State plans. The National TAC would not replace the peer review panels the Department uses to evaluate State standards, assessments, and accountability systems. Rather, the National TAC would consider complex issues that affect all States, as well as issues that would benefit from discussions with experts in the field. For example, the National TAC could help create guidelines for how States should determine an appropriate minimum subgroup size, taking into consideration other elements of States' AYP definitions, as we have proposed in Sec. 200.7. Under the proposed regulations, the Secretary would solicit nominations from the public for experts in the fields of assessment design and implementation, and the field of accountability to serve on the National TAC. The proposed regulations provide that, from these nominations, the Secretary would select 10 to 15 National TAC members. The National TAC could meet as a whole or in subcommittees. Reasons: The Department currently uses experts in the fields of assessment and accountability to review State standards, assessments, and accountability systems. During the course of reviewing State Plans, these experts, as well as States, have raised a number of complex issues (e.g., the appropriate use of confidence intervals and indexes, and the alignment of alternate assessments with alternate academic achievement standards). Advice from a National TAC consisting of experts with knowledge in the fields of educational standards, assessments, accountability systems, statistics, and psychometrics would help the Department address these complex and technical issues. Just as States have established State technical advisory committees to advise them on the development and implementation of their State standards, assessments, and accountability systems, the Department believes that regular access to a group of experts would benefit the Department, States, and, ultimately, students in ensuring that State standards and assessments are of the highest technical quality and that State accountability systems hold schools and districts accountable for the achievement of all students. Sections 200.32 and 200.50(d)(1)--Identification of Schools and LEAs for Improvement Statute and Current Regulations: Section 1116(b)(1)(A) of the ESEA and Sec. 200.32(a)(1) require an LEA to identify a school for improvement if it does not make AYP, ``as defined * * * under section 1111(b)(2),'' for two consecutive years. Section 1116(c)(3) of the ESEA and Sec. 200.50(d)(1) contain a similar requirement for identifying LEAs for improvement. Under section 1111(b)(2)(I) of the ESEA and Sec. 200.20, a school or LEA makes AYP if: (1) All students and each subgroup of students under Sec. 200.13(b)(7)(ii) meet or exceed the State's separate annual measurable objectives (AMOs) for reading/language arts and math, (2) the school or LEA meets or exceeds the State's other academic indicators, and (3) not less than 95 percent of all students and those in each subgroup identified in Sec. 200.13(b)(7)(ii) take the State's assessments. A school or LEA may also make AYP through the ``safe harbor'' provisions described previously in this notice. Under current policy, the Department permits the identification of schools and LEAs for improvement if the school or LEA did not make AYP because it did not meet the AMO in the same subject or academic indicator for two consecutive years. So, for example, if a school did not make AYP because it did not meet the AMO for math for two consecutive years, the school would be identified for improvement. On the other hand, if a school, in the first year, did not make AYP because it did not meet the AMO in math but met the AMO in reading/ language arts, and then, in the second year, did not make AYP because it did not meet the AMO in reading/language arts but met the AMO in math, that school would not be identified for improvement. [[Page 22028]] The Department, however, does not permit an LEA or a State to limit the identification of schools and LEAs for improvement to only those schools and LEAs that did not make AYP because the same subgroup did not meet the AMO in the same subject or meet the same other academic indicator for two consecutive years. So, for example, if a school, in the first year, did not make AYP because the students with disabilities subgroup did not meet the AMO in math, and then, in the second year, the school did not make AYP because the LEP students subgroup did not meet the AMO in math, the LEA must identify that school for improvement. In this example, identification for improvement is based on not meeting the AMO in the same subject, math, not on whether the same subgroup did not meet the AMO. Proposed Regulations: We are proposing to codify the Department's current policy in Sec. Sec. 200.32 and 200.50(d). Proposed Sec. 200.32 would provide that, in identifying a school for improvement, an LEA may base identification on whether the school did not make AYP because it did not meet the AMO in the same subject or meet the same other academic indicator for two consecutive years. The LEA may not, however, limit such identification to those schools that did not make AYP only because they did not meet the AMO in the same subject or meet the same other academic indicator for the same subgroup under Sec. 200.13(b)(7)(ii) for two consecutive years. Comparable changes with respect to the identification of LEAs for improvement would be made in proposed Sec. 200.50(d)(1). Reasons: We are proposing to codify our current policy in order to establish clear parameters for LEAs and States to use when identifying schools and LEAs for improvement. We believe the current policy and proposed regulatory changes are consistent with section 1111(b)(2)'s emphasis on proficiency in separate subjects and requiring separate participation rates for math and reading/language arts assessments for purposes of determining AYP, as well as the absence of any similar authority for emphasizing subgroups. Section 1111(b)(2)(E) of the ESEA clearly acknowledges that student achievement in reading and math in a State may start at very different points and, when they do, different trajectories need to be established for each subject toward the goal of 100 percent proficiency by 2013- 2014. Similarly, section 1111(b)(2)(G) of the ESEA requires a State to set different AMOs in math and reading. Participation rates, likewise, must be calculated separately because a student could participate in one, both, or neither of the State's mathematics and reading/language arts assessments. Accordingly, it follows that a State may take into consideration in identifying a school or LEA for improvement the fact that the school or LEA did not meet its AMO in the same subject (including the participation rate for that subject) or meet the same other academic indicator for two consecutive years. There is no similar basis for identifying for improvement a school or LEA only when the same subgroup did not meet the AMO in the same subject or the same other academic indicator for two consecutive years. Although section 1111(b)(2) of the ESEA requires a State to establish separate AMOs for each subject, it requires a State to apply those AMOs to each subgroup in determining whether a school or LEA makes AYP. In addition, section 1111(b)(2)(I)(i) of the ESEA provides that, for a school or LEA to make AYP, ``all students'' and each subgroup must meet or exceed the AMOs. Based on these provisions, the ESEA does not authorize limiting the identification of a school or LEA for improvement to instances when the school or LEA did not make AYP for two consecutive years only because the same subgroup did not meet the AMO for the same subject or the same other academic indicator. Identifying a school or LEA in this manner would be inconsistent with the ESEA's accountability provisions, which require that each subgroup meet the State's AMOs in each subject each year. Section 200.37--Notice of Identification for Improvement, Corrective Action, or Restructuring Statute: Section 1116(b)(1)(A) of the ESEA requires LEAs to identify for improvement any Title I school that fails to make AYP for two consecutive years. The identification must occur before the beginning of the school year following the school's failure to make AYP (section 1116(b)(1)(B)). Section 1116(b)(6) of the ESEA requires an LEA to promptly notify parents of students enrolled in a school identified for improvement, corrective action, or restructuring and to provide them with information regarding what it means to be identified for improvement, corrective action, or restructuring, including an explanation of the parents' option to transfer their child to another public school or the option to obtain SES for the student. Section 1116(b)(1)(E) requires LEAs to provide students enrolled in a school identified for improvement, corrective action, or restructuring with the option to transfer to another school not later than the first day of the school year following such identification. Section 1116(e)(2)(A) requires LEAs with schools in the second year of improvement, in corrective action, or in restructuring to provide, at a minimum, annual notice to parents of the availability of SES, the identity of approved SES providers of those services that are within the LEA or whose services are reasonably available in neighboring LEAs, and a brief description of the services, qualifications, and demonstrated effectiveness of each of those providers. Current Regulations: Section 200.37(b)(4) and (b)(5) implement the statutory requirements for LEAs to provide notice to parents of public school choice and SES options, respectively. Proposed Regulations: Proposed Sec. 200.37(b)(4)(iv) would require that LEAs provide to parents an explanation of the available school choices sufficiently in advance of, but no later than 14 calendar days before, the start of the school year, so that parents have adequate time to exercise their choice option before the school year begins. Proposed Sec. 200.37(b)(5)(ii)(C) would require that the annual notice of the availability of SES explain the benefits of receiving SES, in addition to the identity of approved providers of those services available within the LEA and a brief description of the services, qualifications and demonstrated effectiveness of the providers, as provided in current regulations. Proposed Sec. 200.37(b)(5)(iii) would require this notice to be clear and concise and clearly distinguishable