Title III of the Elementary and Secondary Education Act of 1965 (ESEA), as Amended by the No Child Left Behind Act of 2001 (NCLB), 61828-61844 [E8-24702]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Notices]
[Pages 61828-61844]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24702]


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DEPARTMENT OF EDUCATION


Title III of the Elementary and Secondary Education Act of 1965 
(ESEA), as Amended by the No Child Left Behind Act of 2001 (NCLB)

AGENCY: Office of English Language Acquisition, U.S. Department of 
Education.

ACTION: Notice of final interpretations.

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SUMMARY: In a notice of proposed interpretations published on May 2, 
2008, the Secretary of Education (Secretary) proposed interpretations 
of several provisions of Title III of the ESEA regarding the annual 
administration of English language proficiency (ELP) assessments to 
limited English proficient (LEP) students served by Title III, the 
establishment and implementation of annual measurable achievement 
objectives (AMAOs) for States and subgrantees receiving Title III 
funds, and State and local implementation of Title III accountability 
provisions. This notice of final interpretations provides the 
Secretary's final interpretation for each of the ten proposed 
interpretations.

DATES: These final interpretations are effective November 17, 2008.

FOR FURTHER INFORMATION CONTACT: Richard L. Smith, Office of English 
Language Acquisition, U.S. Department of Education, 400 Maryland 
Avenue, SW., room 5C-132, Washington, DC 20202. Telephone: (202) 401-
1402.
    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: 

Background

    General. The intent of this notice of final interpretations 
(notice) is to ensure that all States understand and implement the 
requirements of Title III in accordance with the Secretary's ``bright-
line'' principles of NCLB--including annual assessments of and 
accountability for all students--as they apply to the implementation of 
Title III of the ESEA.
    One of the key goals of Title III of the ESEA is to ensure that LEP 
students attain English language proficiency, attain high levels of 
academic achievement in English, and meet the same challenging State 
academic content and student academic achievement standards that all 
children are expected to meet. To achieve this goal, Title III grants 
provide States and their subgrantees \1\ with funds to implement 
language instruction educational programs to help LEP students acquire 
English and achieve at high levels in the core academic subjects.
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    \1\ This notice refers to ``subgrantees'' throughout, consistent 
with the language in Title III of the ESEA, to refer to entities 
receiving Title III, Part A subgrants. The vast majority of 
subgrantees under Title III are local educational agencies (LEAs). 
However, subgrantees may also include groups of LEAs in which one or 
more LEAs is too small to be individually eligible to apply for a 
Title III grant; such LEAs may join together to form consortia in 
order to qualify to receive the minimum amount of a Title III 
subgrant, $10,000.
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    Title III subgrantees are required to use Title III funds to 
support (1) high-quality professional development designed to improve 
services to LEP students, and (2) high-quality language instruction 
educational programs that are designed to increase the English 
proficiency and academic achievement of LEP students. Title III does 
not require subgrantees to use a specific or particular curriculum or 
approach to language instruction, except that the language instruction 
must be, as required in section 3113(b)(6) of the ESEA, tied to 
scientifically based research on teaching LEP students and demonstrated 
to be effective.
    With the enactment of NCLB, States for the first time were required 
to

[[Page 61829]]

establish ELP standards for LEP students. Under the ESEA, States also 
must assess, on an annual basis, the progress of LEP students served by 
language instruction educational programs funded under Title III.\2\ 
States must also set targets for three separate annual measurable 
achievement objectives (AMAOs) and measure improvements in the 
development and attainment of English proficiency by LEP students 
served by Title III.
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    \2\ In addition to the ELP assessment provisions in Title III, 
Title I of the ESEA requires an annual assessment of all LEP-
designated students that measures LEP students' oral language 
(speaking and listening), reading, and writing skills in English.
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    As States have implemented Title III assessment and accountability 
requirements, they have faced numerous challenges and posed a number of 
questions to the Department about the law's requirements. The final 
interpretations in this notice are intended to help States address 
those challenges by answering their questions and providing them with 
guidance on the implementation of Title III consistent with the basic 
tenets and goals of NCLB. In developing this notice, the Department 
examined current State policies and practices regarding the 
implementation of Title III assessment and accountability requirements, 
and the extent to which these may have been implemented inconsistently 
or incorrectly.\3\ The Department also considered issues and concerns 
submitted during the public comment period for this notice, as well as 
issues raised in our consultations with Congressional staff, State 
Title III and Title I representatives, and assessment and 
accountability experts since the implementation of NCLB.
    Defining Title III-Served LEP Students. The Department recognizes 
that the specific meaning of the term ``LEP students served by programs 
funded under Title III'' and similar terms used throughout this notice 
may vary across States and subgrantees based on the design of 
particular language instruction educational programs and professional 
development programs implemented using Title III funds, as well as the 
design and capacity of State Title III data and accountability systems.
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    \3\ Under 34 CFR 80.40(a), States are responsible for oversight 
and monitoring of their subgrantees' performance. For more 
information, see https://www.ed.gov/policy/fund/reg/edgarReg/
edgar.html.
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    However, at a minimum, under the ESEA, States and subgrantees must 
define ``Title III-served LEP students'' as those LEP students within a 
State's and subgrantee's jurisdiction, respectively, who directly 
receive Title III-funded services. The Department recognizes that, for 
practical reasons, including data system capacity and the nature of 
language instruction educational programs and professional development 
funded under Title III, many States include, in their Title III 
accountability determinations, all LEP students attending public 
schools in their States or all LEP students attending public schools 
within subgrantees' jurisdictions to be Title III-served for the 
purposes of making AMAO determinations. The Department intends that the 
interpretations established in this notice apply to both narrow and 
broad definitions of ``Title III-served LEP students.''
    The final interpretations are neither meant to expand beyond the 
statutory requirements in Title III nor in any way restrict a State's 
discretion in defining broadly which students it considers ``Title III-
served LEP students'' for purposes of Title III accountability.
    The Department requires, however, that each State have a consistent 
policy regarding the methods by which it will make AMAO determinations 
for the State and its subgrantees. The Department also requires each 
State to have consistent guidelines or ``decision rules'' for how 
subgrantees within each State define which students are considered 
``Title III-served LEP students'' for Title III accountability 
purposes.\4\
    Overview of Title III Assessment and Accountability Requirements. 
The following is a brief summary of the basic requirements of Title III 
to which the final interpretations apply. First, each State's Title III 
ELP standards must be based on four language domains--speaking, 
listening, reading, and writing--and be aligned with the achievement of 
challenging academic content and student achievement standards (section 
3113(b)(2)). In addition, each State's ELP assessment must be 
administered annually to Title III-served LEP students (section 
3113(b)(3)(D)), be valid and reliable (section 3122(a)(3)(A)(ii)), and 
provide for the evaluation of LEP students' levels of speaking, 
reading, writing, listening, and comprehension in English (section 
3121(d)(1)).\5\ Title III requires States to ensure that all 
subgrantees comply with the requirement to annually assess the English 
proficiency of all Title III-served LEP students, consistent with the 
ELP assessment requirements in section 1111(b)(7) of the ESEA.
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    \4\ The Department recognizes that the particular LEP students 
designated as Title III-served may differ among subgrantees based on 
the unique designs of the language education instructional programs 
implemented by subgrantees. State decision rules, therefore, do not 
have to yield a single definition of Title III-served LEP students 
that is uniform for every subgrantee. However, States must have 
consistent guidelines so that subgrantees that employ the same kinds 
of program models define their Title III-served LEP student 
population in the same manner. This will help ensure that 
subgrantees are accurately identifying their Title III-served LEP 
student population and that State data and AMAO determinations are 
accurate.
    \5\ The Department permits States to derive a score to reflect 
LEP student performance in the domain of comprehension based on the 
other four assessment domains required by both Title I (section 
1111(b)(7)) and Title III (section 3113(b)(3)(D))--speaking, 
listening, reading, and writing--rather than testing the performance 
of LEP students separately in the domain of comprehension. 
Throughout this notice, the Department refers to four domains when 
discussing assessment requirements under Title I and Title III.
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    Under Title III, States and their subgrantees are accountable for 
meeting AMAOs that relate to Title III-served LEP students' development 
and attainment of English proficiency and academic achievement. Each 
State must set AMAO targets, make determinations on whether subgrantees 
are meeting those targets, and report annually on subgrantees' 
performance in meeting those targets.
    Title III accountability provisions apply to each State and its 
subgrantees. Title III accountability requirements do not, in general, 
apply to individual schools and do not apply to individual LEP 
students.
    The first required AMAO (AMAO 1) focuses on the extent to which 
Title III-served LEP students in a State and its subgrantee 
jurisdictions are making progress in learning English. The second AMAO 
(AMAO 2) focuses on the extent to which Title III-served LEP students 
in a State and its subgrantee jurisdictions are attaining proficiency 
in English. Both of these AMAOs are based on measures derived, in large 
part, from the results of the annual State ELP assessment required 
under section 3113(b)(3)(D) in Title III of the ESEA. The third AMAO 
(AMAO 3) is based on whether the State and its subgrantees meet the 
State's adequate yearly progress (AYP) targets for the LEP subgroup in 
reading/language arts and mathematics, as defined by the State under 
section 1111(b)(2)(B) in Title I of the ESEA.\6\
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    \6\ For Title III accountability purposes, AMAO 3--or AYP--is 
calculated at the subgrantee/LEA and State levels. For Title I 
accountability purposes, AYP is also calculated at the school level.
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    Title III requires subgrantees to notify parents of LEP students 
participating in language instruction educational programs funded under 
Title III if the subgrantee does not meet one or more of the State's 
three required AMAO targets. If a subgrantee does not meet all

[[Page 61830]]

of the State's AMAO targets for two consecutive years, the subgrantee 
must develop and submit an improvement plan to the State and the State 
must provide technical assistance to the subgrantee in developing the 
improvement plan. If a subgrantee does not meet all three AMAO targets 
for four consecutive years, the subgrantee must undertake corrective 
actions.
    Implementation Timeline. State Title III assessment and 
accountability systems must be consistent with the final 
interpretations presented in this notice effective with the assessments 
administered in the 2009-2010 school year and AMAO determinations made 
based on those assessments.
    The Department requires States to revise their Consolidated State 
Plans to reflect changes in their Title III assessment or 
accountability systems. To the extent that the final interpretations 
presented in this notice require States to make changes to their Title 
III assessment and accountability systems, the Department requires 
States to use the amendment process already in place to request such 
changes.
    Prior to implementing any revisions, a State must submit its 
proposed amendments to the Secretary for review and approval. We 
strongly encourage States to submit amendments that are either (1) 
necessary to bring State Title III accountability systems into 
compliance with current law, or (2) required to accurately reflect 
current State practices in implementing Title III assessment and 
accountability requirements.
    The Department intends to follow this notice with a letter to Chief 
State School Officers, State Title III directors, and State Title I 
directors providing more specific details on amendment requests and the 
deadline for making such requests. Amendment requests for the 2008-2009 
school year were due to the Department no later than February 15, 2008. 
We expect a similar deadline to be in place for the 2009-2010 
amendments and will establish that deadline in the forthcoming letter.

Public Comments

    In response to the Secretary's invitation for public comment in the 
notice of proposed interpretations, 74 parties submitted comments. A 
summary of these comments is provided in the following section. There 
are several differences between the notice of proposed interpretations 
and this notice of final interpretations. We discuss these changes in 
greater detail in the following section. Generally, we do not address 
technical or minor changes, and suggested changes that we are not 
authorized to make under the law.

Final Interpretations

    1. Annual ELP Assessments of LEP Students. Background. Section 
3113(b)(3)(D) of the ESEA requires SEAs receiving grants under Title 
III, Part A to ensure that eligible entities receiving a subgrant 
annually assess the English proficiency of all LEP students 
participating in a Title III-funded program, consistent with section 
1111(b)(7) of Title I of the ESEA. Section 1111(b)(7) requires States, 
in their plans under Title I, to demonstrate that LEAs in the State 
provide an annual assessment of English proficiency that measures the 
oral language (speaking and listening), reading, and writing skills of 
all LEP students in the schools served by the SEA.
    This interpretation addresses inquiries that the Department 
received regarding whether States and subgrantees are permitted to 
exempt a LEP student from an annual ELP assessment in any domain in 
which the student has received a proficient score. For example, States 
have requested that, with respect to Title III-served LEP students who 
score proficient in the domains of speaking and listening, but not in 
reading or writing, the State be required to continue to annually 
assess those students only in reading and writing, but not in speaking 
and listening, until such time as the students become proficient in all 
domains.
    In the notice of proposed interpretations, the Secretary proposed 
to interpret Title III to require that all LEP students be assessed 
annually with an assessment or assessments that measure each and every 
one of the language domains of speaking, listening, reading, and 
writing. We explained in the notice of proposed interpretations that 
States could not exempt a student from an annual ELP assessment in any 
domain or ``bank'' the proficient scores of a LEP student.

Analysis of Comments and Changes

    Comments: A number of commenters expressed support for the proposed 
interpretation to disallow ``banking'' of proficient ELP scores in a 
particular domain until such time as a student is proficient in all 
domains. These commenters noted that because academic demands increase 
with each successive grade, language proficiency at one grade level in 
any domain may not be adequate for higher grade levels.
    However, a number of commenters, including several States, 
supported ``banking'' proficient scores in a particular domain. The 
commenters stated that administering annual ELP assessments in all four 
domains is time consuming, detracts from instructional time, and adds 
administrative burden to schools, districts, and States. The commenters 
noted that no purpose is served by retesting students in areas that 
they have already mastered. Some commenters also asserted that student 
motivation decreases with repeated testing. Other commenters suggested 
that States should not have to reassess speaking and listening skills 
if a student demonstrates proficiency, but should annually reassess 
reading and writing skills.
    Several commenters suggested clarifying in the notice of final 
interpretations whether banking scores within a grade span is also 
prohibited.
    Discussion: The Secretary shares the commenters' concerns that LEP 
students could be considered proficient in English without having 
grade-level language proficiency in each domain if ``banking'' of 
proficient scores was permitted. We recognize, as some commenters 
noted, that language development does not necessarily progress evenly, 
and that students may indeed become proficient in some language domains 
(such as listening and speaking) before becoming proficient in other 
domains (such as reading and writing). However, the ELP annual 
assessment requirements in both Title I (section 1111(b)(7)) and Title 
III (section 3113(b)(3)(D)) of the ESEA are explicit in requiring an 
annual assessment of LEP students in each of the language domains. The 
research suggesting that some language skills (e.g., speaking and 
listening) may develop before others (e.g., reading and writing) does 
not necessarily mean that banking proficient scores in some domains is 
an appropriate practice. Even if the development of language is 
sequential across domains, language demands increase as development 
progresses. Therefore, it would not be appropriate to ``bank'' a 
student's listening and speaking scores, for example, in an early grade 
when the student may require language instruction services for a number 
of years before the student becomes proficient in reading and writing--
over which time the demands of demonstrating age- and grade-appropriate 
listening and speaking skills will also change. While students may not 
lose acquired language skills over time, the annual ELP assessment of 
LEP students will ensure that LEP students do not lose ground in any of 
the domains as language demands increase in academic areas in each 
successive grade.

[[Page 61831]]

    We believe that our explanation of this interpretation in the 
notice of proposed interpretations was clear that the banking of 
proficient scores in a particular domain for any period, including 
banking of scores within grade spans, would not be permitted. However, 
we are revising the interpretation to provide this clarification.
    Changes: We have revised the interpretation to state specifically 
that the banking of the proficient scores of LEP students in particular 
domains in any given year, including banking of scores within grade 
spans, is not permitted.
    Comments: One commenter contended that Title III does not require 
an assessment of each of the four domains of listening, speaking, 
reading, and writing.
    Discussion: We disagree with the commenter. Section 3113(b)(3)(D) 
of the ESEA requires SEAs receiving grants under Title III, Part A to 
ensure that eligible entities receiving a Title III subgrant annually 
assess the English proficiency of all LEP students participating in a 
Title III-funded program, consistent with section 1111(b)(7) of Title I 
of the ESEA. Section 1111(b)(7) requires each State, in its plan under 
Title I, to demonstrate that LEAs in the State provide an annual 
assessment of English proficiency that measures the oral language 
(speaking and listening), reading, and writing skills of all LEP-
designated students in the schools served by the SEA. We have added 
language to the interpretation to make this clear.
    Changes: We have added a statement to the final interpretation that 
makes clear that the interpretation is consistent with the language of 
Title I and Title III of the ESEA.
    Comments: A few commenters questioned whether recently-arrived LEP 
students and LEP students in the early grades should participate in an 
ELP assessment or be tested in all language domains. The commenters 
suggested that recently-arrived LEP students should not be tested in 
reading and writing, and that their scores should not be included in 
AMAOs until they can demonstrate speaking and listening skills. Another 
commenter suggested that children in the early grades should be 
assessed only in the domains of listening and speaking.
    Discussion: The clearest reading of the plain language in section 
3113(b)(3)(D) of the ESEA is that all Title III-served LEP students 
must be assessed each year in each domain. Moreover, section 1111(b)(7) 
in Title I requires an annual assessment of all LEP-designated students 
in oral language (listening and speaking), reading, and writing. 
Therefore, it would be inconsistent with the ESEA to permit exemptions 
from testing in certain domains based on a student's age, grade level, 
proficiency level, or length of time in the United States. We have made 
this clear in the final interpretation.
    The purpose of an ELP assessment is to monitor student progress in 
attaining English language proficiency in each of the required domains. 
Under Sec.  200.6(b)(4), a State may exempt a recently-arrived LEP 
student (a LEP student who has attended school in the United States for 
less than 12 months) from one administration of a State's content 
assessment in reading/language arts.\7\ However, a recently-arrived LEP 
student, like all LEP students, is required to take the State's annual 
ELP assessment. Similarly, any LEP student receiving language 
instruction educational services funded by Title III must participate 
in an annual ELP assessment. (See sections 3113(b)(3)(D) and 1111(b)(7) 
of the ESEA).
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    \7\ For more information on the regulations related to recently-
arrived LEP students see: https://www.ed.gov/legislation/FedRegister/
Finrule/2006-3/091306a.html.
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    Changes: We have revised the interpretation to clarify that a State 
may not exempt a LEP student from any portion of an annual ELP 
assessment.
    Comments: Several commenters suggested that the final 
interpretation address exceptions to assessing all four domains for 
students with disabilities whose individualized education program (IEP) 
or 504 plan (under section 504 of the Rehabilitation Act of 1973, as 
amended) includes a recommendation for the student to be exempt from 
testing. The commenters stated that certain disabilities, such as a 
hearing impairment, are particularly relevant to second language 
learning.
    Discussion: Title III does not provide exemptions from annual ELP 
assessments for any Title III-served LEP student. The requirement that 
all LEP students served by Title III participate in an annual ELP 
assessment does not preclude providing appropriate accommodations for 
assessing a LEP student who is also a student with disabilities under 
the Individuals with Disabilities Education Act (IDEA). For example, a 
student with a hearing impairment might need to be assessed in 
listening with the same accommodations that the student receives in the 
regular classroom (e.g., an assistive listening device). States and 
LEAs should provide appropriate accommodations for LEP students with 
disabilities to annually assess their language needs and ensure they 
attain English language proficiency in each of the required domains 
consistent with 34 CFR 200.6.
    Changes: None.
    Final Interpretation. The Secretary interprets section 
3113(b)(3)(D) of the ESEA to require that all LEP students served by 
programs funded under Title III be assessed annually with an assessment 
or assessments that measure each of the language domains of speaking, 
listening, reading, and writing. States may not exempt LEP students 
from any portion of an annual ELP assessment, nor ``bank'' the 
proficient scores of LEP students in particular domains in any given 
year or within a specific grade span until such time as a student is 
proficient in all domains. This interpretation is consistent with the 
clear language of both Title I and Title III of the ESEA, which 
requires, without exception, that LEP students be assessed annually 
with an assessment that measures listening, speaking, reading, and 
writing skills.
    2. Use of Annual ELP Assessment Scores for AMAOs 1 and 2.
    Background. Section 3121(d)(1) in Title III requires States to 
evaluate the progress of LEP students toward attaining English 
proficiency, including LEP students' levels of comprehension, speaking, 
listening, reading, and writing in English. Section 3122(a)(3)(A)(i) 
and (ii) in Title III requires that States develop AMAOs that include 
annual increases in the number or percentage of children making 
progress in learning English and annual increases in the number or 
percentage of students attaining English proficiency by the end of each 
school year.
    States have asked the Department to provide guidance on how they 
may take into account student performance in each of the English 
language domains when setting the accountability targets for making 
progress in learning English (AMAO 1) and demonstrating proficiency in 
English (AMAO 2) under Title III. Specifically, States have asked (1) 
whether students must make progress in and attain proficiency in each 
language domain required under Title III to be considered to have made 
progress or to attain proficiency overall for AMAO 1 and AMAO 2, 
respectively, and (2) whether a State may use a ``composite'' score 
across English language domains to demonstrate student progress and 
proficiency on State ELP assessments.
    In the notice of proposed interpretations, the Secretary proposed 
to interpret Title III to allow States flexibility in determining 
whether

[[Page 61832]]

students who make progress in some (but not all) domains can be 
considered to have demonstrated progress for AMAO 1 purposes, but to 
require that students demonstrate proficiency in each and every 
language domain in order to be considered to have attained proficiency 
for AMAO 2 purposes. The proposed interpretation also allowed States to 
base their student performance expectations and accountability (i.e., 
AMAO 1 and AMAO 2 targets) on assessment results derived from either 
(1) separate student performance levels or scores in each of the 
language domains or (2) a single composite score or performance level 
derived by combining performance across domains, so long as such a 
composite score could be demonstrated to be a valid and effective 
measure of a student's progress and proficiency in each of the English 
language proficiency domains.

Analysis of Comments and Changes

    Comments: None.
    Discussion: In the notice of proposed interpretations, we included 
separate interpretations for AMAO 1 and AMAO 2. In our review of the 
proposed interpretations, we decided it was unnecessary to separate 
them and have combined them in the final interpretation.
    Changes: We have consolidated the interpretations for AMAO 1 and 
AMAO 2 into one interpretation.
    Comments: Several commenters opposed our proposal to allow States 
to use a composite score to measure English language progress or 
proficiency for Title III-served LEP students. The commenters expressed 
concern that a composite score may mask important information about a 
student's strengths and weaknesses and permit a student who is very 
weak in some domains, but strong in others, to obtain a proficient 
composite score on an ELP assessment. Some commenters expressed concern 
that the proposed interpretation was intended to allow States to 
disregard one or more domains or use one domain to define AMAOs and set 
targets. Other commenters expressed concern that progress in all 
domains would not be required to meet AMAO 1 under the proposed 
interpretation.
    Discussion: The Secretary's interpretation should not be read as 
suggesting that States can disregard performance in any domain in 
measuring progress or in defining English language proficiency. Such an 
interpretation would be inconsistent with the ESEA and 
counterproductive; a State that defined AMAO 1 (progress) without 
considering all domains would likely find it difficult to ensure that 
students meet AMAO 2 (attainment of proficiency). The Secretary agrees 
that, in general, AMAO 1 determinations should be made with attention 
to progress in all of the language domains required by Title III. 
However, in recognition of the evidence that language development does 
not necessarily proceed at the same pace across all of the language 
domains, we wanted to provide each State with the flexibility to define 
its progress goals accordingly. It was our understanding that some 
States may have been advised that they were prohibited from counting a 
Title III-served LEP student as making progress for AMAO 1 purposes if 
the student had not made progress in each and every domain in a given 
school year.
    The Department is not encouraging States to change their AMAO 1 
determinations if those determinations are based on requiring student 
progress in all domains on annual State ELP assessments. The Department 
is simply recognizing that, given the nature of language acquisition, 
some LEP students may make meaningful progress in learning English 
without necessarily making progress in each and every domain in a given 
school year.
    The Department's final interpretation gives each State discretion 
in how it defines progress and sets accountability targets for AMAO 1, 
so long as the targets provide for (1) meaningful progress toward 
attaining English language proficiency and (2) improvement in overall 
student performance on the State's ELP assessment. The final 
interpretation makes it clear that AMAO 1 targets must meet these two 
conditions.
    With regard to the use of a composite score to demonstrate 
proficiency in English for AMAO 2 purposes, the Department recognizes 
the technical demands and testing burdens, described by numerous 
testing experts and States, of requiring States to have an 
independently valid and reliable ELP assessment score for each of the 
four language domains (plus comprehension, required under section 
3121(d)(1)). With regard to the specific concern about composite scores 
masking very weak performance in some domains, the final interpretation 
is clear that--whether or not a State's ELP assessment yields separate 
domain scores or a composite score--the ELP assessment must 
meaningfully measure student proficiency in each of the language 
domains and, overall, be a valid and reliable measure of student 
progress and proficiency in English. Even if represented by a composite 
score, AMAO 2 must be a measure that demonstrates sufficient student 
performance in all required domains to consider a LEP student to have 
attained proficiency in English.
    Changes: The Department added language to the final interpretation, 
which was included in the explanation section of the proposed 
interpretation, stating that AMAO targets must provide for (1) 
meaningful progress toward attaining English language proficiency and 
(2) improvement in overall student performance on the State's ELP 
assessment.
    Comment: Several commenters noted that the proposed interpretation 
appears to prohibit States from using a ``compensatory model'' in 
defining English language proficiency and to require States to use a 
``conjunctive model'' in which English language proficiency is 
determined by separate scores in each and every domain.
    Discussion: The proposed interpretation was not meant to require a 
conjunctive model such that State ELP assessments would be required to 
generate separate and independently valid scores for each domain. We 
have changed the interpretation to make this clear. The proposed 
interpretation also was not necessarily meant to prohibit States from 
using a compensatory model, although the Secretary is concerned that 
compensatory models could be used to allow LEP students with weak 
performance in one or more English language domains--such as reading or 
writing--to still be considered to have attained proficiency in 
English.
    The Secretary intends with this final interpretation to ensure that 
all English language domains required under Title I and Title III are 
assessed and that each State is prepared to provide evidence that its 
State ELP assessment provides valid and reliable measures of LEP 
student progress and proficiency, consistent with the purpose for which 
the assessment is used. For Title III, the purpose of the State ELP 
assessment is to evaluate subgrantee performance in ensuring that Title 
III-served LEP students are making progress toward and ultimately 
attaining proficiency in English by demonstrating performance in each 
of the English language domains that is sufficient to permit LEP 
students to participate effectively in grade-level instruction in 
academic content areas in English.
    The Department recognizes that most States use some combination or 
composite of domain scores to define overall proficiency goals and 
targets for Title III accountability purposes. The Department also 
recognizes that there are a number of very important

[[Page 61833]]

technical issues related to how States develop and analyze individual 
test items, and combine, average, and weight scores across ELP domains 
to define progress and proficiency and set performance expectations 
(i.e., AMAO targets) for LEP students--whether they use individual 
domain scores or composite scores. While these numerous technical 
issues are not specifically addressed in this notice, the final 
interpretation is clear that, under the ESEA, each State must be 
prepared to provide evidence that the various technical aspects of its 
ELP assessment are consistent with the requirements in Title III and 
valid for the purposes for which the assessment is being used. This 
includes demonstrating that its ELP assessment measures all required 
domains and yields reliable information on a student's progress and 
proficiency in each of those domains.
    Changes: To clarify that States are not required to use a 
conjunctive model with respect to their ELP assessments, we have made 
clear in the final interpretation that a State can use a composite 
score so long as the State can demonstrate that the composite score 
meaningfully measures student progress and proficiency in each of the 
language domains and, overall, is a valid and reliable measure of 
student progress and proficiency in English, consistent with the 
purpose for which the assessment is used.
    We have also removed language in the proposed interpretation for 
AMAO 2, which stated that, ``In setting student performance 
expectations and accountability targets for attaining proficiency in 
English (AMAO 2), it is the Secretary's proposed interpretation of 
Title III that a LEP student must score proficient or above in each and 
every language domain required under Title III in order to be 
considered to have `attained proficiency' on a State's ELP 
assessment.'' This specific language appeared to signal to some 
commenters that the Department was systematically rejecting both 
compensatory models and composite scores by requiring ELP assessments 
to generate a separate and valid score for each language domain. 
Instead, the Department is requiring that each State be able to 
demonstrate that its ELP assessment meaningfully measures student 
progress and proficiency in each of the language domains, and, overall, 
is a valid and reliable measure of student progress and proficiency in 
English, consistent with the purpose for which the assessment is used.
    Comments: One commenter noted that section 1111(b)(7) in Title I of 
the ESEA lists listening and speaking together under ``oral language'' 
rather than as separate domains and asked if States can treat these two 
domains as one domain.
    Discussion: Consistent with the Secretary's interpretation, which 
allows States to use a composite score on ELP assessments to define 
progress and proficiency, there is nothing that would prohibit a State 
from treating oral language as a composite of listening and speaking. 
However, as noted earlier, each State must be able to demonstrate, with 
data and evidence, that its ELP assessment measures skills in each of 
the required domains, including listening and speaking, and that its 
score for ELP proficiency represents the acquisition of skills in each 
domain required under the law.
    Changes: None.
    Comments: A number of commenters cited the technical challenges 
States would have if the Department required separate performance 
standards for each domain. The commenters stated that separate 
standards for each domain would require States to redesign their 
assessments and include significantly larger samples and more items 
within each subdomain, which would result in a long and costly 
assessment. The commenters expressed preference for a more ``holistic'' 
judgment across all four subdomains in defining progress and 
proficiency under Title III.
    Discussion: The Department is not requiring States that use 
composite ELP assessment scores for accountability determinations to 
redesign their assessments to generate separate valid and reliable ELP 
domain scores. States using composite ELP assessment scores must be 
able to demonstrate, with data and evidence, that their ELP assessment 
measures knowledge and skills in each of the required domains and that 
ELP proficiency scores reflect the acquisition of skills in each domain 
required under the law.
    We recognize that the language in the notice of proposed 
interpretations may have been misinterpreted to mean that States may 
not use a composite score to define English language proficiency. 
Therefore, as stated above, we have removed this language from the 
final interpretation.
    Changes: We have revised the interpretation to remove the language 
suggesting that States must have a separate, independent and valid 
score for each language domain in order to determine a student's 
English language proficiency.
    Final Interpretation. The Secretary interprets Title III to allow 
States to base student performance expectations and accountability 
targets for progress and proficiency (i.e., AMAOs 1 and 2, 
respectively) on ELP assessments that provide either (1) separate 
student performance levels or scores in each of the language domains or 
(2) a single composite score. In either case, a State must be able to 
demonstrate that its ELP assessment meaningfully measures student 
progress and proficiency in each language domain and, overall, is a 
valid and reliable measure of student progress and proficiency in 
English, consistent with the purpose for which the assessment is used.
    With regard to AMAO 1, the Secretary interprets Title III to allow 
States to determine AMAO 1 targets, where appropriate, based on 
progress in one or more of the language domains, rather than requiring 
student progress separately in each and every one of the language 
domains, so long as the targets provide for meaningful progress toward 
attaining English language proficiency and student performance on the 
State's ELP assessment, overall, is improving.
    With regard to AMAO 2, the Secretary interprets Title III to 
require--regardless of whether a State uses separate or composite 
domain scores--that ELP assessments meaningfully measure student 
proficiency in all language domains and, overall, provide for valid and 
reliable measures of student proficiency in English across the required 
domains.
    3. Students Included in Title III Accountability. Background. 
Section 3122(a)(1) of the ESEA requires States to develop AMAOs for 
Title III-served LEP students. The AMAOs relate to students' progress 
and attainment of English proficiency and students' ability to meet 
challenging State academic content and student academic achievement 
standards required in section 1111(b)(1) of Title I of the ESEA. The 
AMAOs must include--(1) at a minimum, annual increases in the number or 
percentage of Title III-served LEP children making progress in learning 
English (AMAO 1); (2) at a minimum, annual increases in the number or 
percentage of Title III-served LEP children attaining English 
proficiency by the end of each school year, as determined through a 
valid and reliable assessment of English proficiency, consistent with 
section 1111(b)(7) of Title I of the ESEA (AMAO 2); and (3) making AYP 
for the LEP subgroup, as described in section 1111(b)(2)(B) of Title I 
of the ESEA (AMAO 3). States must set annual targets for each AMAO and 
determine whether each subgrantee is meeting the targets.
    The Department is aware that some States systematically exclude 
Title III-served LEP students from Title III

[[Page 61834]]

accountability determinations in ways that are inconsistent with the 
law. For example, some States treat AMAO 1 and AMAO 2 as mutually 
exclusive, such that a Title III-served LEP student is included in 
either AMAO 1 or AMAO 2, but not both. The Department is also aware 
that some States identify a subgroup of Title III-served students as 
``eligible'' to be included in AMAOs based on their expected 
performance on ELP assessments, which systematically excludes some 
Title III-served LEP students from AMAO targets, calculations, and 
determinations. Such practices are inconsistent with the AMAO 
provisions in Title III.
    In the notice of proposed interpretations, the Secretary proposed 
to interpret Title III to require that all Title III-served LEP 
students be included in all AMAO targets, calculations, and 
determinations.

Analysis of Comments and Changes

    Comments: A number of commenters expressed concern that the 
proposed interpretation would require all LEP students, not just Title 
III-served LEP students, to be included in AMAOs. However, another 
commenter stated that the Department was being overly restrictive and 
seemed to be prohibiting States from including LEP students not served 
by Title III in AMAOs.
    Discussion: We acknowledge that the proposed interpretation was not 
clear and therefore, have revised the interpretation to make clear that 
AMAOs are only required to be applied to Title III-served LEP students. 
That said, and as discussed previously in this notice, the Department 
recognizes that States and districts vary in how they designate LEP 
students as ``Title III-served students.'' In many jurisdictions all 
LEP students are counted as Title III-served students because Title III 
funds are used for activities that benefit all LEP students. In other 
jurisdictions, it may be less burdensome to count all LEP students as 
Title III-served students than to track a subset of students receiving 
direct services under Title III. Regardless of how States and 
subgrantees designate students as Title III-served, AMAOs are only 
required to be applied to LEP students who are receiving Title III 
services. Accordingly, we have revised the interpretation to clarify 
that Title III requirements apply to States and subgrantees receiving 
Title III funds, and LEP students receiving Title III services. We note 
that by clarifying this language in this interpretation and elsewhere 
in this notice, the Department does not intend to prohibit or to 
discourage States from more broadly including all LEP students in 
AMAOs.
    Changes: We have clarified in this interpretation and in other 
interpretations in this notice, where appropriate, that Title III 
requirements apply to States, to subgrantees receiving Title III funds, 
and to students served by Title III.
    Comments: A few commenters expressed concern that the proposed 
interpretation would require AMAO calculations to include LEP students 
in non-public schools and schools and districts not receiving Title III 
funds.
    Discussion: States are only required to make AMAO determinations 
for subgrantees that receive Title III funds. However, as noted 
earlier, some States include, in AMAO determinations, LEP students who 
are not in districts receiving Title III funds or students not directly 
served by Title III-funded programs. Regarding students in non-public 
schools, Title III AMAOs do not apply to LEP students served under that 
program through the equitable services provisions that attend non-
public schools.
    Changes: None.
    Comments: A number of commenters argued that Title III-served LEP 
students who are not expected to reach proficiency in a given year 
should not be included in AMAO 2 calculations or that the performance 
of such students should be ``weighted'' so that their scores do not 
count as much as the scores of other students in AMAO determinations.
    Discussion: As noted earlier, the Department is aware that some 
States treat AMAO 1 and AMAO 2 as mutually exclusive, such that Title 
III-served LEP students are included in either AMAO 1 or AMAO 2, but 
not both. We also understand that some States identify a subset of 
Title III-served students as ``eligible'' to be included in AMAOs and 
exclude some Title III-served LEP students from AMAO targets, 
calculations, and determinations.
    The Secretary finds no justification or support in the statute for 
excluding a Title III-served student from AMAO 2 based on the student's 
current proficiency levels or on expectations for how long it will take 
the student to become proficient in English. In addition, the Secretary 
finds no justification or support in the statute for ``weighting'' 
student ELP assessment results so that students at lower English 
proficiency levels are discounted in accountability determinations. The 
final interpretation is consistent with the plain language of Title 
III, which makes no provision for defining AMAOs in ways that 
systematically exclude from or discount certain Title III-served LEP 
students in AMAO targets, calculations, and determinations.
    Changes: None.
    Comments: Several States pointed out that using Title I AYP 
determinations for AMAO 3 will not necessarily mean that all LEP 
students are included in AMAO 3 because, under Title I, the scores of 
some students (e.g., students who have not been in a school for a full 
academic year, recently-arrived LEP students) are excluded from AYP 
determinations. In addition, one State noted that it could not include 
all LEP students in AMAO 3 because it could only include in its AYP 
determination those LEP students in tested grades.
    Discussion: The commenters are correct. In the final 
interpretation, we acknowledge that there are several exceptions to the 
requirement that all Title III-served LEP students be included in all 
AMAO targets, calculations, and determinations.
    Changes: We have clarified in the final interpretation that the 
requirement to include all LEP students in AMAO 3 is subject to the 
exclusions permitted under Title I of the ESEA.\8\ In addition, the 
final interpretation regarding AMAO 3 (Interpretation 7) allows States 
to make AMAO 3 determinations based on the entire LEP subgroup as 
defined by Title I or the group of Title III-served LEP students only.
---------------------------------------------------------------------------

    \8\ We note that under our Title I regulations in 34 CFR 
200.20(f), some LEP students may not be included in AYP 
determinations because of their recently-arrived status. 
Furthermore, for example, if a student has not been enrolled in the 
same school or LEA for a full academic year as defined by the State, 
such a student may be excluded from AYP calculations. For more 
information on recently-arrived LEP students see 34 CFR 
200.20(f)(2)(i)(A) at: https://www.ed.gov/legislation/FedRegister/
finrule/2006-3/091306a.html and the Department's guidance on the 
regulations at: https://www.ed.gov/policy/elsec/guid/lepguidance.doc. 
The same regulations also include information on how States may 
choose to include former LEP students in AYP calculations for the 
LEP subgroup for up to two years after such students have exited the 
LEP subgroup. For more information on other exceptions permitted in 
AYP calculations, such as full academic year enrollment, see the 
Title I guidance at https://www.ed.gov/policy/landing.jhtml.
---------------------------------------------------------------------------

    Comments: One commenter questioned why the Department would require 
that a Title III subgrantee be held accountable for the whole LEP 
subgroup, in measuring AMAO 3, when the Title III program serves only a 
subset of LEP students.
    Discussion: The statute is unclear about whether AMAO 3 must 
include the scores of all LEP students or only Title III-served LEP 
students. As a practical matter, the Department understands that most 
States calculate AMAO 3 based on all LEP students in

[[Page 61835]]

the State because it is not practical or cost effective to make a 
separate AYP determination for only Title III-served LEP students. 
However, the Secretary will permit, but not require, a State to base 
AMAO 3 on the performance of Title III-served LEP students, if a State 
is able and willing to calculate separate subgrantee- and State-level 
AYP determinations for this subgroup of students.
    Changes: We have revised this interpretation, as well as 
Interpretation 7, to permit, but not require, a State to calculate 
separate subgrantee- and State-level AYP determinations for Title III-
served LEP students for AMAO 3.
    Comments: None.
    Discussion: In clarifying the Department's intent with regard to 
Interpretation 4 to allow the exclusion, from AMAO 1 calculations, of 
students who have not participated in two administrations of the 
State's ELP assessment, the Department determined that this situation 
constitutes another exception to the general requirement that all Title 
III-served LEP students be included in all AMAOs. As discussed 
previously, the Department recognizes that our Title I regulations 
governing AYP calculations (such as full academic year) permit the 
exclusion of some students, including potentially some Title III-served 
LEP students, from AMAO 3 calculations. We, therefore, have revised the 
interpretations accordingly.
    Changes: We have revised this interpretation to explain exceptions 
to the requirement to include all Title III-served students in all AMAO 
targets, calculations, and determinations. These exceptions are 
discussed in greater detail in Interpretations 4 and 7.
    Final Interpretation. The Secretary interprets Title III to require 
that, in general, all Title III-served LEP students be included in all 
AMAO targets, calculations, and determinations. This interpretation is 
consistent with the plain language in Title III, which makes no 
provision for defining AMAOs in ways that systematically exclude any 
Title III-served LEP students from any AMAO targets, calculations, and 
determinations.
    However, the Department acknowledges that, for certain Title III-
served LEP students who have had limited participation in language 
instruction educational programs and State ELP assessments, or based on 
how States make AYP determinations, States may not have the requisite 
student assessment data to include these students in AMAO calculations. 
Therefore, there are two exceptions to the general requirement in this 
interpretation. First, a State is not required to include in its AMAO 1 
calculation Title III-served LEP students who have not participated in 
two administrations of a State's annual ELP assessment consistent with 
Interpretation 4. Second, a State is not required to include in its 
AMAO 3 calculation the scores of Title III-served LEP students whose 
scores are excluded from the State's AYP determination under Title I 
and Sec.  200.20(f).\9\
---------------------------------------------------------------------------

    \9\ We note that under our Title I regulations in 34 CFR 
200.20(f), some LEP students may not be included in AYP 
determinations because of their recently-arrived status. 
Furthermore, if a student has not been enrolled in the same school 
or LEA for a full academic year as defined by the State, such a 
student may be excluded from AYP calculations. However, other than 
these exceptions permitted in calculating AYP under Title I, this 
interpretation provides that all LEP students must be included in 
Title I accountability determinations and, therefore, in AMAO 3 
determinations. For more information on recently-arrived LEP 
students see 34 CFR 200.20(f)(2)(i)(A); https://www.ed.gov/
legislation/FedRegister/finrule/2006-3/091306a.html. For more 
information on other exceptions permitted in AYP calculations, such 
as full academic year enrollment, see Title I guidance at https://
www.ed.gov/policy/landing.jhtml.
---------------------------------------------------------------------------

    4. Exclusion of Title III-Served LEP Students ``Without Two Data 
Points'' from AMAO 1.
    Background. Section 3122(a)(3)(A)(i) of the ESEA requires States to 
develop an AMAO that measures Title III-served LEP student progress in 
learning English. Thus, AMAO 1 requires that States and subgrantees, at 
a minimum, show annual increases in the number or percentage of Title 
III-served LEP children making progress in learning English.
    In Interpretation 3 of this notice, the Department's final 
interpretation is that all LEP students served by Title III must be 
included in Title III accountability determinations, subject to two 
exceptions. Interpretation 4 addresses one of these exceptions, i.e., 
the question of whether States are permitted to exclude from AMAO 1 
calculations and determinations Title III-served LEP students who do 
not have ``two data points'' that can be used to measure progress; that 
is, students who have not participated in two administrations of a 
State's annual ELP assessment required under Title III.
    States have, in general, operationalized AMAO 1 as a measure of 
individual student growth in English language proficiency. Therefore, 
States typically include in AMAO 1 determinations only Title III-served 
LEP students for whom States have at least two scores or data points 
from comparable assessments, so that ``progress'' or growth can be 
demonstrated for individual students over time.
    In the notice of proposed interpretations, the Secretary proposed 
to interpret Title III to include all Title III-served LEP students in 
measures of student progress in learning English (AMAO 1), regardless 
of whether the students participated in at least two consecutive and 
consistent annual administrations of an ELP assessment required under 
section 3113 of the ESEA. For students who did not participate in two 
consecutive and consistent annual administrations of an ELP assessment, 
the proposed interpretation would have, in effect, required States to 
propose to the Department an alternative method of measuring progress 
in order to include such students in AMAO 1 determinations. The 
proposed interpretation also would have allowed States to include 
additional criteria, over and above ELP assessment results, in AMAO 
determinations.

Analysis of Comments and Changes

    Comments: Several commenters expressed support for the opportunity 
to propose to the Department an alternative method of measuring student 
progress in learning English in order to calculate AMAO 1 for Title 
III-served LEP students who do not have scores from two administrations 
of the State's ELP assessment. The commenters noted, for example, that 
States should receive credit for the progress of LEP students in 
kindergarten and newly enrolled LEP students who make progress in 
language proficiency. However, the vast majority of commenters opposed 
including, in AMAO 1 determinations, students who do not have at least 
two scores on the State's annual ELP assessment. The commenters stated 
that using measures other than the State's ELP assessment to make 
accountability decisions may result in unreliable data from non-
comparable assessments and may force States to misuse assessments for 
purposes for which they were not designed.
    Discussion: The Department did not intend to suggest that States 
use unreliable, invalid, or inappropriate assessment data to make 
accountability determinations. The purpose of this interpretation is to 
ensure that States include as many Title III-served LEP students in 
AMAO 1 determinations as possible. The Department believes that some 
States were advised that they were prohibited from including in AMAO 1 
determinations any student for whom the State did not have scores from 
two State ELP assessments, and we wanted to correct this 
misunderstanding.
    The Department's intent was to ensure that States are measuring the

[[Page 61836]]

progress of all Title III-served LEP students in acquiring English and 
to address the large numbers of Title III-served LEP students who are 
not included in AMAO 1 calculations because States report them as not 
having participated in two administrations of the State's ELP 
assessment. We expect that some students will legitimately have only 
``one data point'' on the State ELP assessment. For example, LEP 
students in kindergarten, or LEP students who are recent arrivals to 
the United States would likely only have participated in one 
administration of a State's ELP assessment. However, States should not 
exclude from AMAO 1 determinations, students who transfer across 
districts within States, for example, or are absent for an assessment 
without adequate opportunities for a make-up exam. According to data 
submitted by States for the 2007 Consolidated State Performance Report 
(CSPR), an average of 30 percent of Title III-served LEP students had 
only one State ELP assessment score, and therefore were not included in 
AMAO 1 determinations. Twelve States were unable to measure progress 
for 35 percent or more of their Title III-served LEP students. Nine 
States could not include 40 percent or more of their Title III-served 
LEP students in AMAO 1 because they did not have scores from two 
administrations of the State's ELP assessment.
    These concerns remain. However, the Department is persuaded by the 
commenters' arguments and has changed this interpretation to require 
that States include in AMAO 1 the scores of Title III-served LEP 
students who have participated in at least two administrations of the 
State's annual ELP assessment. States also may include, in AMAO 1 
determinations, progress measures for Title III-served LEP students who 
have participated in fewer than two administrations of the ELP 
assessment but are not required to do so. The final interpretation 
provides that States may propose to the Secretary alternative measures 
of progress for students who do not have scores from two 
administrations of the annual ELP assessment so that such students can 
be included in AMAO 1 determinations.
    Regardless of whether a student has scores from two administrations 
of the State's ELP assessment, we note that under Title III States are 
accountable for all Title III-served LEP students. We will continue to 
require States to report the number of Title III-served LEP students 
who do not have two data points on the State's annual ELP assessment. 
States must be able to account for and explain to the Department during 
its regular Title III monitoring activities, the specific reasons why 
students' scores were not included in AMAO 1.
    Changes: We have revised the interpretation to require States, in 
calculating AMAO 1, to include only the scores of Title III-served LEP 
students who have participated in two administrations of the State's 
ELP assessment. We also have revised the interpretation to provide that 
if a State does not have results from two administrations of the 
State's annual ELP assessment for some Title III-served LEP students, 
but wants to include those students in its AMAO 1 accountability 
determinations, the State may propose to the Secretary an alternative 
measure of progress for those students. The final interpretation 
specifies that an alternative measure of progress must be based on 
research on how LEP children acquire proficiency in English and be a 
reliable measure of growth in English language proficiency.
    Comments: Several commenters stated that it was inappropriate for 
the Department to require States to make AMAO 2 determinations based on 
only ``one data point.''
    Discussion: The Department wants to be clear that the lack of ``two 
data points'' does not affect AMAO 2 calculations of proficiency. AMAO 
2 is not a progress measure, nor does it require multiple measures of 
student growth. Any Title III-served LEP student who participates in 
one administration of the State's ELP assessment must be included in 
AMAO 2 (proficiency) calculations.
    Changes: None.
    Comments: Numerous commenters expressed concern about including in 
AMAO 1 Title III-served LEP students who have received Title III 
services for less than a full academic year.
    Discussion: There is no provision in Title III (unlike the explicit 
provision in section 1111(b)(3)(C)(xi) in Title I regarding AYP 
determinations) that provides for Title III-served LEP students to be 
excluded from AMAO determinations based on whether such students have 
attended a school or schools in a subgrantee's jurisdiction for less 
than a full academic year. Therefore, States may not apply Title I's 
full academic year policies to AMAO 1 and AMAO 2 determinations.
    Changes: None.
    Comments: None.
    Discussion: The proposed interpretation allowed States discretion 
to use criteria in addition to performance on the State's ELP 
assessment in calculating AMAO 1 (e.g., performance on State content 
assessments or other criteria similar to the criteria States use to 
define English language proficiency, which may involve data or 
information from multiple sour