Title I-Improving the Academic Achievement of the Disadvantaged, 64436-64513 [E8-25270]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64436-64513]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25270]



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Part III





Department of Education





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34 CFR Part 200



Title I--Improving the Academic Achievement of the Disadvantaged; Final 
Rule

Federal Register / Vol. 73, No. 210 / Wednesday, October 29, 2008 / 
Rules and Regulations

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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: Final regulations.

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SUMMARY: The Secretary amends the regulations governing programs 
administered under Part A of Title I of the Elementary and Secondary 
Education Act of 1965, as amended, to clarify and strengthen current 
Title I regulations in the areas of assessment, accountability, public 
school choice, and supplemental educational services.

DATES: These regulations are effective November 28, 2008.

FOR FURTHER INFORMATION CONTACT: Zollie Stevenson, Jr., Director, 
Student Achievement and School Accountability Programs, Office of 
Elementary and Secondary Education, U.S. Department of Education, 400 
Maryland Avenue, SW., room 3W230, Washington, DC 20202-6132. Telephone: 
(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: These regulations amend regulations in 34 
CFR part 200, implementing certain provisions of Title I, Part A of the 
Elementary and Secondary Education Act of 1965 (ESEA), as amended by 
the No Child Left Behind Act of 2001 (NCLB), which are designed to help 
disadvantaged children meet high academic standards. On April 23, 2008, 
the Secretary published a notice of proposed rulemaking (NPRM) for the 
Title I, Part A program in the Federal Register (73 FR 22020).
    These final regulations reflect an effort to respond to the results 
of six years of implementation of the reforms introduced into the ESEA 
by NCLB. The accountability reforms implemented during that time--
including annual testing in reading and mathematics, school and local 
educational agency (LEA) accountability for the achievement of all 
students (including students in certain subgroups), the measurement of 
school performance and identification for improvement where necessary, 
and the provision of public school choice and supplemental educational 
services (SES) options to parents and their children--have resulted in 
fundamental changes in the way that States and LEAs approach the 
challenge of educating all students to high standards. Parents and 
educators now have more information and data than ever before on how 
our schools are performing and where schools and LEAs need to make 
changes. Superintendents, principals, and teachers are hard at work 
developing and implementing strategies for raising student achievement 
and improving school performance, including by fundamentally 
restructuring chronically poor-performing schools. Nearly all States 
are reporting increases in student achievement, as measured by their 
own assessments in reading and mathematics in grades 3 through 8 and 
high school, and all States have put in place comprehensive plans for 
ensuring that all students are proficient in reading and mathematics by 
2014.
    These final regulations build on and strengthen the advances States 
have made with their assessment and accountability systems. We believe 
a small number of significant regulatory changes can make a real 
difference in sustaining and advancing the reforms brought about by 
NCLB, pending reauthorization of the ESEA. The final regulations 
reflect careful consideration of comments we received on our proposed 
regulations and include a number of changes made in response to those 
comments, while remaining consistent with the policy goals of the NPRM.
    The most far-reaching change in these regulations is in how States, 
LEAs, and schools are held accountable for graduating students from 
high school. We believe that establishing a uniform and more accurate 
measure of calculating graduation rate that is comparable across States 
is a critical and essential step forward in improving high school 
accountability. New requirements governing the provision of SES and 
public school choice will help ensure that parents and students are 
informed of their options in a timely and effective manner and that 
LEAs make effective use of their funds to provide public school choice 
and SES. The changes to the regulations regarding SES will also help 
ensure that SES providers offer high-quality services. Changes 
addressing the inclusion of student subgroups in school and LEA 
adequate yearly progress (AYP) determinations will ensure greater 
accountability for the achievement of all groups of students. 
Amendments to the regulations governing restructuring of schools in 
improvement will help ensure that LEAs take significant reform actions 
to improve chronically underperforming schools, as required by the 
statute. Requiring the inclusion of State data from the National 
Assessment of Educational Progress (NAEP) on State and local report 
cards will provide parents and the public with additional important 
information about the performance of the students in their State.
    The other provisions of these final regulations make important 
clarifications or technical changes to existing policies. The 
regulations permit all States to request authority to include measures 
of student growth in their AYP determinations so long as States' growth 
proposals meet certain criteria. The regulations also codify the 
creation of the National Technical Advisory Council (National TAC) and 
the Department's current policy regarding the identification of schools 
and LEAs for improvement. Amendments to the assessment regulations 
clarify that the term ``multiple measures'' in the statute means that 
States may use single or multiple question formats, or multiple 
assessments within a subject area. Lastly, technical changes to the 
definition of ``highly qualified teacher'' align the Title I 
regulations with the Individuals with Disabilities Education Act 
(IDEA).
    In the absence of reauthorization, we believe these final 
regulations are necessary to further the interests of parents and 
children and to improve the implementation of NCLB in order to continue 
progress toward the goal of 100 percent student proficiency in reading 
and mathematics by 2014.

Major Changes in the Regulations

    The following is a summary of the major substantive changes in 
these final regulations from the regulations proposed in the NRPM. (The 
rationale for each of these changes is discussed in the Analysis of 
Comments and Changes section elsewhere in this preamble.)
     In Sec.  200.7(a)(2)(iii) (disaggregation of data), the 
final regulations require each State to submit its revised Consolidated 
State Application Accountability Workbook (Accountability Workbook), 
which would include any changes to its minimum group size and other 
components of AYP, to the Department for peer review in time for any 
changes

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to be in effect for AYP determinations based on 2009-2010 assessment 
results.
     Section 200.11 (participation in NAEP) clarifies the NAEP 
data that State and LEA report cards must contain: the percentage of 
students at each achievement level reported on the NAEP, in the 
aggregate and, for State report cards, disaggregated for each subgroup 
described in Sec.  200.13(b)(7)(ii); and participation rates for 
students with disabilities and limited English proficient (LEP) 
students.
     The final regulations make a number of changes to Sec.  
200.19 (other academic indicators). The section is reorganized to 
separate the requirements for other academic indicators for elementary 
and middle schools from the requirements for calculating graduation 
rate (the required ``other academic indicator'' for high schools). The 
final regulations maintain the current requirements for the other 
academic indicators for elementary and middle schools; however, they 
make a number of changes for calculating graduation rate.

--Section 200.19(b)(1)(ii)(A) adds a definition of ``students who 
transfer into the cohort'' to mean those students who enroll after the 
beginning of the entering cohort's first year in high school, up to and 
including in grade 12.
--Section 200.19(b)(1)(ii)(B) makes clear that a student who emigrates 
to another country may be removed from the cohort and clarifies that a 
school or LEA must confirm in writing that a student transferred out, 
emigrated to another country, or is deceased.
--Section 200.19(b)(1)(ii)(B)(1) clarifies that, to confirm that a 
student transferred out, the school or LEA must have official written 
documentation that the student enrolled in another school or 
educational program that culminates in the award of a regular high 
school diploma.
--Section 200.19(b)(1)(iii) clarifies that the term ``students who 
graduate in four years'' means students who earn a regular high school 
diploma at the conclusion of their fourth year, before the conclusion 
of their fourth year, or during a summer session immediately following 
their fourth year.
--Section 200.19(b)(1)(v) permits a State, in addition to calculating a 
four-year adjusted cohort graduation rate, to propose to the Secretary 
for approval an ``extended-year adjusted cohort graduation rate.''
--Section 200.19(b)(1)(v)(A) defines an extended-year adjusted cohort 
graduation rate as the number of students who graduate in four years or 
more with a regular high school diploma divided by the number of 
students who form the adjusted cohort for the four-year adjusted cohort 
graduation rate, provided that the adjustments account for any students 
who transfer into the cohort by the end of the year of graduation being 
considered minus the number of students who transfer out, emigrate to 
another country, or are deceased by the end of that year.
--Section 200.19(b)(1)(v)(B) permits a State to calculate one or more 
extended-year adjusted cohort graduation rates.
--The final regulations do not require a State to use the Averaged 
Freshman Graduation Rate (AFGR) prior to the State's ability to use an 
adjusted cohort graduation rate.
--Section 200.19(b)(2) permits a State to use a transitional graduation 
rate before being required to use the four-year adjusted cohort 
graduation rate, if that transitional rate meets the graduation rate 
requirements in the current regulations.
--Section 200.19(b)(3)(i) requires a State to set a single graduation 
rate goal that represents the rate the State expects all high schools 
in the State to meet and annual graduation rate targets that reflect 
continuous and substantial improvement from the prior year toward 
meeting or exceeding the State's graduation rate goal.
--Section 200.19(b)(3)(ii) requires a State to hold any high school or 
LEA that serves grade 12 and the State accountable for meeting the 
State's graduation rate goal or targets beginning with AYP 
determinations based on school year 2009-2010 assessment results.
--Section 200.19(b)(4)(ii) requires a State and its LEAs to report the 
four-year adjusted cohort graduation rate in the aggregate and 
disaggregated by the subgroups described in Sec.  200.13(b)(7)(ii) 
beginning with report cards providing results of assessments 
administered in the 2010-2011 school year. If a State adopts an 
extended-year adjusted cohort graduation rate, the State and its LEAs 
must report this rate separately from its four-year rate beginning with 
the first year for which the State calculates such a rate.
--Section 200.19(b)(5) requires a State, beginning with AYP 
determinations based on school year 2011-2012 assessment results, to 
use the four-year adjusted cohort graduation rate to calculate AYP at 
the school, LEA, and State levels, in the aggregate and disaggregated 
by the subgroups described in Sec.  200.13(b)(7)(ii).
--Prior to calculating AYP under Sec.  200.20(a)(1)(ii) (meeting the 
State's annual measurable objectives) based on school year 2011-2012 
assessment results, a State must calculate graduation rate in the 
aggregate at the school, LEA, and State levels using the four-year 
adjusted cohort graduation rate or the transitional graduation rate.
--Section 200.19(b)(6) requires a State to revise its Accountability 
Workbook to include certain information and submit its revisions to the 
Department for technical assistance and peer review in time for any 
changes to be in effect for AYP determinations based on 2009-2010 
assessment results.
--Section 200.19(b)(7) permits a State that cannot meet the regulatory 
deadline for reporting a four-year adjusted cohort graduation rate to 
request an extension of time from the Secretary, provided the State 
submits, by March 2, 2009, evidence satisfactory to the Secretary 
demonstrating that it cannot meet that deadline and a detailed plan and 
timeline addressing the steps the State will take to implement, as 
expeditiously as possible, the four-year adjusted cohort graduation 
rate. Even if a State receives an extension, it must calculate 
graduation rate at the school, LEA, and State levels both in the 
aggregate and disaggregated by the subgroups described in Sec.  
200.13(b)(7)(ii) beginning with AYP determinations based on school year 
2011-2012 assessment results.

     Section 200.22(b)(1) (National TAC) makes clear that the 
National TAC must include members who have knowledge of and expertise 
in designing and implementing standards, assessments, and 
accountability systems for all students, including students with 
disabilities and LEP students.
     Section 200.37(b)(5)(ii)(B) (notice of identification for 
improvement, corrective action, or restructuring) requires an LEA to 
indicate, in its notice to parents, those SES providers who are able to 
serve students with disabilities or LEP students.
     Section 200.39(c)(1) (responsibilities resulting from 
identification for school improvement) requires an LEA to display 
certain information regarding public school choice and SES on its Web 
site in a timely manner to ensure that parents have current 
information. Paragraph (c)(2) requires an SEA to post on its Web site 
the required information for any

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LEA that does not have its own Web site.
     Section 200.43 (restructuring) contains two changes. 
First, paragraph (a)(4) makes clear that, if a school begins to 
implement a restructuring option as a corrective action, the school 
need not implement a significantly more rigorous and comprehensive 
reform at the restructuring stage. Second, paragraph (b)(3)(v) 
clarifies that a major restructuring of a school's governance may 
include replacing the principal so long as this change is part of a 
broader reform effort.
     Section 200.44(a)(2) (public school choice) makes clear 
that an LEA must offer, through the 14-day notice required under Sec.  
200.37, the option to parents to transfer their child so that the child 
may transfer in the school year following the school year in which the 
LEA administered the assessments that resulted in its identification of 
the school for improvement, corrective action, or restructuring.
     Section 200.47 (SEA responsibilities for SES) contains 
several changes.

--Paragraph (a)(1)(ii)(B) requires an SEA to post on its Web site, for 
each LEA, the amount of funds the LEA must spend on choice-related 
transportation and SES and the maximum per-pupil amount the LEA must 
spend for SES.
--Paragraph (a)(3)(ii) requires an SEA to indicate on its list of 
approved SES providers those that are able to serve students with 
disabilities or LEP students.
--Paragraph (b)(2)(ii)(C) requires an LEA to ensure that the 
instruction a provider gives and the content a provider uses are of 
high quality, research-based, and specifically designed to increase the 
academic achievement of eligible children.

     Section 200.48 (funding for choice-related transportation 
and SES) contains several changes.

--Paragraph (d)(1)(i) no longer requires an LEA to obtain approval from 
its SEA before spending less than an amount equal to at least 20 
percent of its Title I, Part A allocation (the ``20 percent 
obligation'') on choice-related transportation, SES, and parent 
outreach and assistance. Instead, revised paragraph (d)(2) requires an 
LEA that wishes to use unspent choice-related transportation and SES 
funds for other allowable activities to (1) meet, at a minimum, certain 
criteria specified in paragraph (d)(2)(i), (2) maintain records 
demonstrating that it has met those criteria, (3) notify the SEA that 
it has met the criteria and that it intends to spend the remainder of 
its 20 percent obligation on other allowable activities, and (4) 
specify the amount of the remainder.
--Paragraph (d)(3) requires SEAs to ensure an LEA's compliance with the 
criteria in paragraph (d)(2)(i) through its regular monitoring process. 
However, in addition to its regular monitoring process, for any LEA 
that (1) the SEA determines has spent a significant portion of its 20 
percent obligation for other allowable activities and (2) has been the 
subject of multiple complaints, supported by credible evidence, 
regarding its implementation of the Title I public school choice or SES 
requirements, the SEA must review the LEA's compliance with the 
criteria in paragraph (d)(2)(i) by the beginning of the next school 
year.
--Paragraph (d)(4)(i) provides that, if an SEA finds that an LEA has 
failed to meet any of the criteria in paragraph (d)(2)(i), the LEA must 
(1) spend an amount equal to the remainder specified in paragraph 
(d)(2)(iii)(B) in the subsequent school year, in addition to its 20 
percent obligation for that year, on choice-related transportation 
costs, SES, or parent outreach and assistance; or (2) meet the criteria 
in paragraph (d)(2)(i) and obtain permission from the SEA before using 
any unspent choice-related transportation and SES funds for other 
allowable activities in that subsequent school year.
--Under paragraph (d)(4)(ii), an SEA may not grant permission to an LEA 
to spend less than the amount in paragraph (d)(4)(i)(A) unless the SEA 
has confirmed the LEA's compliance with the criteria in paragraph 
(d)(2)(i) for that subsequent school year.
--Paragraph (d)(2)(i)(A) requires an LEA that wishes to use unspent 
funds from its 20 percent obligation for other allowable activities to 
partner, ``to the extent practicable,'' with outside groups, such as 
faith-based organizations, other community-based organizations, and 
business groups to help inform eligible students and their families of 
the opportunities to transfer or receive SES.
--Paragraph (d)(2)(i)(B)(3) requires an LEA to provide a minimum of two 
enrollment ``windows,'' at separate points in the school year, that are 
of sufficient length to enable parents of eligible students to make 
informed decisions about requesting supplemental educational services 
and selecting a provider.

     Section 200.56 (definition of ``highly qualified 
teacher'') makes clear that a special education teacher is a ``highly 
qualified teacher'' under the ESEA if the teacher meets the 
requirements for a ``highly qualified special education teacher'' under 
the Individuals with Disabilities Education Act (IDEA).

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 400 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and changes in the regulations since publication of the NPRM 
follows.
    We discuss substantive issues under the sections of the regulations 
to which they pertain. Generally, we do not address technical or minor 
changes, and suggested changes that we are not authorized to make under 
the law.

Section 200.2 State Responsibilities for Assessment

    Comment: Numerous commenters argued that the definition of multiple 
measures, as proposed in Sec.  200.2(b)(7), is far too narrow and 
should be expanded to permit States to include, in their AYP 
definitions, other measures of student performance such as written and 
oral presentations and projects, student portfolios, performance 
assessments, local assessments, teacher-designed assessments, and 
curriculum-embedded assessments. Other commenters stated that formative 
and adaptive assessments are widely used at the local level and asked 
that they be specifically referenced in the regulations. One commenter 
stated that student learning needs to be assessed throughout the year 
with several assessments in order to determine how much students learn 
during the school year. Several commenters recommended that the 
regulations specifically reference alternate assessments based on 
grade-level achievement standards as one way to meet the multiple 
measures requirement.
    Discussion: The Secretary's intent in amending Sec.  200.2(b)(7) 
was to clarify the meaning of ``multiple measures'' in the context of 
State assessment systems required under section 1111(b)(3) of the ESEA, 
particularly in light of frequent criticisms that school accountability 
should not be based only on a single assessment of student achievement. 
Section 1111(b)(3)(C)(vi) of the ESEA requires that State assessments 
``involve multiple up-to-date measures of student academic achievement, 
including measures that assess higher-order thinking skills and 
understanding.'' In proposed Sec.  200.2(b)(7), we clarified that this 
requirement could be met by using

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single or multiple question formats that range in cognitive complexity 
within a single assessment or by using multiple assessments within a 
subject area. We did not in any way intend to narrow the basic 
definition of the term or to permit States to use only certain types of 
assessments.
    The requirement that State assessments involve multiple measures of 
academic achievement is one of a number of requirements in section 
1111(b)(3)(C) of the ESEA that all State assessments must meet (e.g., 
that State assessments are used to measure the achievement of all 
children; that they are aligned with the State's challenging academic 
content and student academic achievement standards; that they are valid 
and reliable; and that they are of adequate technical quality for each 
purpose used). These requirements do not prevent a State from using, in 
determining AYP, results from other measures of student achievement 
such as those mentioned by the commenters (e.g., local assessments; 
curriculum-embedded assessments; performance assessments), provided 
those measures are submitted for peer review and determined by the 
Secretary to meet the statutory and regulatory requirements.
    The Secretary does not believe it is necessary or appropriate to 
refer to specific types of assessments, such as formative assessments, 
adaptive assessments, and portfolio assessments, in Sec.  200.2(b)(7). 
The key point is not the type of measure but the fact that any 
assessment used by a State for accountability determinations must meet 
the requirements in section 1111(b)(3)(C) of the ESEA and be approved 
by the Secretary.
    Changes: None.
    Comment: Many commenters recommended that non-test-based measures 
such as attendance rates, grade-point averages, graduation and dropout 
rates, in-school retention rates, and the percentage of students taking 
honors and advanced placement classes be included in AYP 
determinations.
    Discussion: The ESEA and the Department's current regulations 
already both require and permit States to use non-test-based measures, 
such as those recommended by the commenters, in AYP determinations. 
Specifically, both section 1111(b)(2)(C)(vi) of the ESEA and current 
Sec.  200.19(a)(1) (new Sec.  200.19(a) and (b)) require a State to 
include at least one other academic indicator in its AYP 
determinations, which must be the graduation rate for high schools and 
an academic indicator of the State's choosing for elementary and middle 
schools. A State may, at its discretion, also include additional 
academic indicators. Current Sec.  200.19(b) (new Sec.  200.19(c)) 
provides examples of additional academic indicators that a State may 
use, which include additional State or local assessments, the 
percentage of students completing advanced placement courses, and 
retention rates. As outlined in current Sec.  200.19(c) (new Sec.  
200.19(d)), however, a State's other academic indicators must be valid 
and reliable; consistent with relevant, nationally recognized 
professional and technical standards, if any; and consistent throughout 
the State within each grade span. Moreover, under Sec.  200.19(e), a 
State may not use its other academic indicators to reduce the number 
of, or change, the schools that would otherwise be subject to school 
improvement, corrective action, or restructuring.
    Changes: None.
    Comment: One commenter stated that the Department should provide 
more flexibility for LEAs to experiment with various assessment systems 
that are aligned with the State's academic content and student academic 
achievement standards, but developed with community and local 
involvement and input.
    Discussion: Section 200.3 specifically permits a State to include, 
in the State assessment system that it uses to determine AYP, a 
combination of State and local assessments. If a State permits the 
inclusion of local assessments, however, the State must, among other 
things, establish technical criteria to ensure that each local 
assessment meets, for example, the statutory and regulatory 
requirements for validity, reliability, and technical quality, and 
demonstrate that the local assessments are equivalent to one another in 
their content coverage, difficulty, and quality; have comparable 
validity and reliability with respect to subgroups of students; and 
provide unbiased, rational, and consistent determinations of the annual 
progress of schools and LEAs within the State. Moreover, locally 
developed assessments that are not included as part of the annual State 
assessment system under section 1111(b)(3) of the ESEA may be used as 
an additional other academic indicator under current Sec.  200.19(b) 
(new Sec.  200.19(c)).
    Changes: None.
    Comment: Numerous commenters supported the proposed changes in 
Sec.  200.2(b)(7). One of these commenters, however, expressed concern 
that there may be continued confusion about the differences between the 
use of multiple measures and the use of multiple non-academic 
indicators in accountability determinations.
    Discussion: Section 200.2(b)(7) addresses only the requirement in 
section 1111(b)(3)(C)(vi) of the ESEA that State assessments involve 
multiple, up-to-date measures of student academic achievement. As 
discussed earlier, such measures must meet all the statutory and 
regulatory requirements applicable to State assessments. Separate and 
apart from this requirement is the flexibility for a State to include 
multiple, additional academic indicators in making AYP determinations, 
consistent with section 1111(b)(2)(C)(vii) and (b)(2)(D) of the ESEA 
and current Sec.  200.19(b) (new Sec.  200.19(c)). These indicators, 
however, may not be used to reduce the number of, or change, the 
schools that would otherwise be subject to school improvement, 
corrective action, or restructuring (see Sec.  200.19(e)).
    Changes: None.
    Comment: One commenter expressed concern that requiring multiple 
types of questions on a State assessment could delay the reporting of 
results. One commenter stated that including different types of 
questions to assess higher-order thinking skills would add complexity 
to an assessment and may increase the time it takes to score the 
assessment and make AYP determinations. Another commenter stated that 
the language in the proposed regulations did not describe how States 
should assess higher-order thinking skills.
    Discussion: We wish to emphasize that the new language in Sec.  
200.2(b)(7) is intended merely to clarify the several ways a State may 
involve multiple measures in the State's assessment system. If a State 
chooses to make a substantive revision to its assessment system by 
changing the way it implements the multiple measures requirement in 
Sec.  200.2(b)(7), it must submit its proposed change to the Department 
for peer review. Otherwise, no actions are required by States as a 
result of the amendment to this section.
    Changes: None.
    Comment: One commenter stated that the regulations on multiple 
measures set a bar that any State could currently claim to meet. 
Another commenter asked why the requirement to use multiple measures to 
assess student achievement and higher-order thinking skills was not 
negotiated as a part of the original State accountability plans, given 
the statutory mandate that such measures be used. Another commenter 
asked why the Department is only now emphasizing that multiple 
assessments may be used in States' accountability systems. One 
commenter stated that the Department objected to multiple

[[Page 64440]]

measures in the early implementation of the NCLB amendments to the ESEA 
and asked why the Department has changed its position.
    Discussion: The Secretary explained in the preamble to the NPRM 
that the changes to Sec.  200.2(b)(7) simply clarify section 
1111(b)(3)(C)(vi) of the ESEA, which requires State accountability 
systems to include multiple up-to-date measures of student academic 
achievement. We believe it is necessary to make these clarifications 
based on our understanding that some parents, teachers, and 
administrators mistakenly believe that the ESEA requires the use of a 
single assessment. The changes do not impose new requirements or 
require States to change their current assessment systems; nor do they 
represent a change in the Department's position. The Department has 
consistently made clear to States, since the early implementation of 
NCLB, that multiple assessments may be used to measure student 
achievement in a subject area in order to assess mastery of the breadth 
of a particular content domain, provided that all assessments used to 
determine AYP meet the applicable statutory and regulatory 
requirements. There are States, for example, that currently use reading 
and writing assessments to calculate AYP in reading/language arts or 
use algebra and probability assessments to calculate AYP in 
mathematics. These policies may continue under the revised regulation.
    Changes: None.
    Comment: One commenter requested clarification regarding whether a 
State that uses multiple assessments to measure achievement must ensure 
that those assessments are uniform throughout the State.
    Discussion: Section 1111(b)(1)(B) of the ESEA and Sec.  200.1 make 
clear that a State must adopt challenging academic content and student 
achievement standards, which must be the same standards the State 
applies to all students. A State's assessments must be aligned with 
those standards. Therefore, a State's assessments, although they need 
not necessarily be uniform, must measure the same content and the same 
level of achievement.
    Changes: None.
    Comment: One commenter objected to the provision in proposed Sec.  
200.2(b)(7)(i), which stated that multiple measures may include a 
single-question format to measure student achievement. The commenter 
recommended removing the words ``single or'' in Sec.  200.2(b)(7)(i).
    Discussion: We believe that States should have the flexibility to 
assess student academic achievement, as defined by the State, using a 
single-question format. Assessments that use one type of question 
format are able to, and in fact are required to, assess varying levels 
of cognitive complexity and higher-order thinking skills. Therefore, we 
decline to make the change suggested by the commenter.
    Changes: None.
    Comment: One commenter stated that the proposed regulation would 
define multiple measures in a way that undermines the ESEA by subsuming 
the multiple-measures requirement within the requirement to assess 
higher-order thinking skills and understanding of challenging content. 
The commenter stated that the purpose of multiple measures is to ensure 
the validity and reliability of judgments about proficiency, as 
required by the ESEA, by providing multiple ways for students to 
demonstrate proficiency in the same skills and knowledge. The commenter 
maintained that the regulation, as drafted, implies that the purpose of 
multiple measures is to assess higher-order thinking skills and 
understanding of challenging content. The commenter recommended that 
the Department (1) remove the proposed language and retain the language 
in the current regulations; (2) clarify that, in order to achieve the 
overall purpose of ensuring validity and reliability of the proficiency 
determinations made under the ESEA, multiple measures must include 
different ways of measuring the same proficiencies of students in the 
knowledge and skills identified in the State's standards; and (3) 
provide guidance on how multiple measures can be combined in order to 
make valid and reliable determinations of a student's proficiencies.
    Discussion: The regulations provide clarifications that are 
necessary to ensure that States understand that their assessments may 
include single or multiple question formats and that they may use 
multiple assessments to measure achievement in a specific content 
domain. They also refer to assessments that measure objectives within a 
particular content domain and assessments with items that both measure 
higher-order thinking skills (e.g., reasoning, synthesis, and analysis) 
and knowledge and recall items that assess the depth and breadth of 
mastery of a particular content domain. The changes requested by the 
commenter are not necessary given the purpose of the amendments to this 
particular section of the regulations.
    Changes: None.
    Comment: Many commenters recommended that the final regulations in 
Sec.  200.2(b)(7) include language requiring that assessments use the 
principles of ``universal design'' in order to increase the 
accessibility of assessments for a wide variety of students.
    Discussion: Although we agree that using the principles of 
universal design in developing assessments would increase the 
accessibility of assessments, we do not believe it is necessary to 
include such a requirement in these regulations. Section 200.2(b)(2) 
already requires State assessments to be ``designed to be valid and 
accessible for use by the widest possible range of students, including 
students with disabilities and students with limited English 
proficiency.'' In addition, the regulations in 34 CFR 300.160(g) 
implementing the IDEA require States to use universal design 
principles, to the extent possible, in developing all general State and 
district-wide assessment programs, including assessments described 
under section 1111 of the ESEA.
    Changes: None.

Section 200.7 Disaggregation of Data

    Comment: Many commenters objected to the Department's proposal to 
amend Sec.  200.7, which would require a State to determine the minimum 
number of students sufficient to yield statistically reliable 
information for each purpose for which disaggregated data are used and 
to ensure, to the maximum extent practicable, that all student 
subgroups are included, particularly at the school level, for purposes 
of making accountability decisions. Several commenters did not agree 
with the statement in the preamble to the NPRM that nearly 2 million 
students are not counted in NCLB subgroup accountability determinations 
at the school level because States set unnecessarily large minimum 
group sizes. The commenters asserted that this statement is not based 
on peer-reviewed research by reputable scholars. One of the commenters 
argued that the statement ignores the fact that every child is included 
in at least one group (the ``all students'' group) either at the school 
or LEA level. Other commenters objected to statements in the preamble 
that the commenters interpreted to be a suggestion by the Department 
that States set their minimum group size in order to exclude certain 
subgroups and minority students from accountability determinations. 
These commenters maintained that States set minimum group sizes in 
order to protect the privacy of students and not to exclude certain 
subgroups and minority students from accountability determinations.

[[Page 64441]]

Another commenter stated that the proposed changes would result in 
schools being identified for improvement based on the scores of too few 
students.
    Discussion: The Secretary's intent in amending Sec.  200.7 was to 
ensure that schools and LEAs are held accountable for the achievement 
of all their students. The Department recognizes that, when reporting 
information to the public, States must balance the need to maintain 
student privacy and the need for statistically reliable information 
with the clear intent of the statute to hold schools and LEAs 
accountable for the achievement of their subgroups. Further, if schools 
and LEAs are held accountable only for the achievement of their 
students as a whole, the importance that the ESEA places on 
disaggregated data and subgroup accountability would be diminished.
    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. This emphasis on subgroup 
accountability is one of the major changes that Congress made to the 
ESEA's accountability provisions when it enacted NCLB. In fact, as 
stated in section 1001(3) of the ESEA, one of the primary purposes of 
NCLB is to close the achievement gap between high- and low-performing 
students, especially the achievement gaps between minority and non-
minority students and between disadvantaged children and their more 
advantaged peers. This purpose could not be accomplished without 
subgroup accountability.
    Disaggregated accountability is tempered only by the need to ensure 
statistical reliability and to protect student privacy. Thus, section 
1111(b)(2)(C)(v) of the ESEA and Sec.  200.7 do not require 
accountability determinations by student subgroup if the size of the 
subgroup is too small to yield statistically reliable information or is 
such that personally identifiable information about individual students 
would be revealed. Logically, the larger a State's minimum group size, 
the less likely that students in a subgroup will constitute an 
accountability group, particularly at the school level, and that the 
school will be held accountable for the performance of that subgroup. 
Thus, it is appropriate that the regulations require States to find the 
optimal minimum group size that maximizes the inclusion of student 
subgroups in accountability decisions.
    It is important to note that these regulations amend Sec.  
200.7(a), which is intended to ensure that the minimum group size that 
is used by a State to calculate proficiency rates in AYP determinations 
yields statistically reliable information. Section 200.7(b) of the 
current regulations includes an additional requirement with which a 
State must comply when reporting information to the public. 
Specifically under this section, a State may not report achievement 
results if the results would reveal personally identifiable information 
about an individual student in accordance with the Family Educational 
Rights and Privacy Act (FERPA). 20 U.S.C. 1232g; 34 CFR part 99. 
Because the threshold (i.e., the number of students) that a State uses 
to ensure that it does not reveal personally identifiable information 
is generally lower than the threshold it uses for ensuring its 
proficiency calculations yield statistically reliable information, a 
State can, and often does, establish separate minimum group sizes for 
calculating proficiency rates and for reporting assessment results.
    Changes: None.
    Comment: Some commenters stated that the proposed regulations did 
not go far enough to ensure that States use statistically reliable 
methods to determine minimum group size. Several commenters recommended 
that the Department establish a uniform minimum group size for all 
States. A few commenters recommended a minimum group size of between 10 
and 20 with confidence intervals that do not exceed 95 percent. Another 
commenter recommended a minimum group size of no greater than 30 and no 
confidence intervals greater than 90 percent. Several commenters 
supported a minimum group size of 67.
    Other commenters argued that a State should be permitted to use 
confidence intervals along with their minimum group size in making AYP 
determinations. One commenter stated that a small minimum group size 
requires larger confidence intervals to make accurate school and LEA 
AYP determinations. Some commenters, however, stated that confidence 
intervals exceeding 95 percent are unwarranted. Still other commenters 
argued that confidence intervals greater than 90 percent should not be 
allowed.
    Discussion: The diversity of recommendations by commenters reflects 
the lack of consensus in the education community on a uniform minimum 
group size that all States would be required to use. Given this lack of 
consensus, as well as the lack of research supporting the use of a 
specific number, we believe the requirements in Sec.  200.7 establish a 
reasonable approach to ensuring that States establish minimum group 
sizes that appropriately balance statistical reliability and privacy 
with the statutory emphasis on disaggregation and subgroup 
accountability.
    A State's minimum group size must be large enough to produce 
statistically reliable information and protect students' privacy, yet 
small enough to maximize the inclusion of student subgroups in 
accountability decisions. Further, the Department believes that a 
State's minimum group size must be considered along with other 
components of a State's AYP definition. Therefore, Sec.  
200.7(a)(2)(ii) requires a State to explain how a State's minimum group 
size interacts with the other components of its AYP definition to 
affect the statistical reliability of the data, and to ensure the 
maximum inclusion of students and student subgroups in AYP 
determinations.
    The National TAC will provide advice to the Department on how a 
State should consider the interactions of the various components in its 
AYP definition (such as the interaction of minimum group size and 
confidence intervals). In addition, external peer reviewers will review 
the evidence submitted by a State in order to help ensure that the 
State is establishing a system that leads to statistically sound AYP 
determinations and also maximizes the inclusion of all students and 
student subgroups while ensuring student privacy.
    Changes: None.
    Comment: A few commenters requested that the Department consider 
requiring States and LEAs to include additional groups in the student 
subgroups referenced in proposed Sec.  200.7(a)(2). One commenter 
suggested that the Department require States and LEAs to disaggregate 
data for AYP determinations not only for students with disabilities but 
by disability category.
    Discussion: Although the Secretary understands the intent of these 
comments, we do not think it is appropriate to expand the subgroups 
covered by this regulation beyond those specified in the ESEA and Sec.  
200.13(b)(7)(ii). We believe that the inclusion of these subgroups is 
sufficient to ensure meaningful and comprehensive accountability for 
all students. Further, the more specific the

[[Page 64442]]

categories (e.g., individual disability categories), the smaller the 
groups would be and, therefore, the less likely they would meet a 
State's minimum group size and be reflected in accountability 
determinations.
    Changes: None.
    Comment: Another commenter, wanting to gain more information about 
the extent to which accountability systems exclude highly mobile 
students from accountability determinations, suggested that proposed 
Sec.  200.7(a)(2) require States to provide information about the 
number of students excluded from accountability determinations due to 
student mobility.
    Discussion: We agree with the commenter and believe Sec.  
200.7(a)(2)(ii)(C) already requires a State to provide information in 
its Accountability Workbook about students excluded from accountability 
determinations due to student mobility. Section 200.7(a)(2)(ii)(C) 
requires a State to provide information regarding the number and 
percentage of students and student subgroups excluded from school-level 
accountability determinations. This requirement encompasses subgroups 
that are excluded from school-level accountability determinations as a 
result of the State's minimum group size and other statistical 
principles, as well as students excluded from school-level 
accountability determinations as a result of not attending the same 
school for a ``full academic year.''
    Changes: None.
    Comment: One commenter stated that lowering a State's minimum group 
size would have a profound impact on small schools because the 
assessment results from one or two students could affect AYP 
determinations.
    Discussion: It is true that if a State, through the process 
outlined in the final regulations, adopts a smaller minimum group size, 
the number of schools with student subgroups included in AYP 
calculations is likely to increase. A State's minimum group size, 
however, would still need to be of sufficient size to yield 
statistically reliable information and protect the privacy of 
individual students. Thus, it is unlikely that one or two students 
would have a deleterious effect on AYP determinations, except when a 
subgroup is at or near a State's minimum group size. In that case, the 
performance of one or two students could affect AYP determinations no 
matter what the minimum group size is. We believe that the requirement 
that States adopt an optimal minimum group size strikes a balance 
between the need to produce statistically reliable information and the 
goal of maximizing inclusion of student subgroups in accountability. 
When this balance is achieved, students in all schools, including small 
schools, benefit because their schools are held accountable for their 
achievement.
    Changes: None.
    Comment: One commenter recommended that States be allowed to use a 
specific number or percentage of a population in their definition of 
minimum group size.
    Discussion: Any State that uses or wishes to use a minimum group 
size that is based on a specific number or percentage of the school 
population would need to demonstrate how this method yields 
statistically reliable information for each purpose for which 
disaggregated data are used and ensure that, to the maximum extent 
practicable, all groups are included for the purposes of making 
accountability determinations, consistent with Sec.  200.7(a)(2)(i).
    Changes: None.
    Comment: One commenter recommended that the regulations clarify 
whether the minimum group size applies to graduation rate calculations.
    Discussion: Section 200.7(a)(2)(i)(A) requires a State to establish 
a minimum group size that yields statistically reliable information for 
each purpose for which disaggregated data are used. Therefore, minimum 
group size, and the requirements that accompany it, applies to 
determining whether a group has met the State's annual measurable 
objectives; whether it has at least a 95 percent participation rate; 
whether it made AYP based on ``safe harbor;'' and whether it met the 
State's objectives for the other academic indicators, including 
graduation rate. Minimum group size also applies to reporting 
achievement data to the public. The Department believes that the 
current language is clear and declines to amend the regulations.
    Changes: None.
    Comment: Many commenters expressed concerns regarding the provision 
in proposed Sec.  200.7(a)(2)(ii) that would require a State to revise 
its Accountability Workbook to include information about its minimum 
group size and the students and student subgroups excluded from school-
level accountability determinations. Several commenters representing 
States asserted that revising their Accountability Workbook would be an 
unnecessary fiscal and staffing burden. Others stated that the time and 
resources needed to revise the Accountability Workbook were 
significantly underestimated in the Summary of Costs and Benefits in 
the NPRM. One commenter stated that requiring a State to revise its 
Accountability Workbook gives the perception that the State is 
concealing its data.
    A number of other commenters supported proposed Sec.  
200.7(a)(2)(ii). Several commenters recommended making information 
about the exclusion of students from accountability determinations more 
transparent by requiring a State to report: (a) The results of 
empirical or simulation studies and the process the State used to 
select its minimum group size; and (b) the number and percentage of 
subgroups that made AYP using the ``safe harbor'' provision or 
confidence intervals. The commenters recommended including information 
about the exclusion of students from accountability determinations on 
State and LEA report cards because the public is more likely to read a 
report card than an Accountability Workbook.
    Discussion: Transparency is a key element of NCLB. The Department 
believes it is appropriate for a State to explain in its Accountability 
Workbook the effect that the various components of the State's AYP 
definition have on the inclusion of students and student subgroups in 
accountability determinations. Making this information available 
through a State's Accountability Workbook will enable the public to 
gain a better understanding of how schools are being held accountable 
for the performance of their students and student subgroups.
    We disagree that the requirements in Sec.  200.7(a)(2)(ii) are 
unnecessary or give the impression that a State is concealing data. We 
believe that the benefits of increasing transparency and accountability 
greatly outweigh the costs to a State of revising its Accountability 
Workbook. We address the specific concerns about the costs of revising 
Accountability Workbooks in the Summary of Costs and Benefits section 
later in this preamble.
    We do not believe it is necessary to require a State to submit the 
additional information recommended by the commenters. Although some 
States may include the information recommended by the commenters in 
their Accountability Workbook, we believe that States should have 
flexibility in how they address the requirements in Sec.  
200.7(a)(2)(ii). We also do not agree that the information included in 
a State's Accountability Workbook should be included on State and LEA 
report cards. The information in Sec.  200.7(a)(2)(ii) that a State is 
required to submit to the Department is more appropriately provided in 
the State's Accountability Workbook where the

[[Page 64443]]

various elements of the State's AYP definition are outlined and to 
ensure peer review of those elements.
    Changes: None.
    Comment: Several commenters objected to requiring a State to submit 
a revised Accountability Workbook six months following the effective 
date of the final regulations. The commenters stated that a six-month 
timeline is too short and is unrealistic given that each State would 
need to conduct an extensive policy review to establish its minimum 
group size. Other commenters requested that the Department wait until 
Congress reauthorizes the ESEA before requiring a State to revise its 
Accountability Workbook because reauthorization will likely require 
additional changes to States' accountability systems.
    Discussion: In order to have a cohesive accountability system, a 
State must understand how the various components of its AYP 
determinations fit together to provide accurate accountability 
decisions. The Secretary believes that now, more than six years after 
the implementation of NCLB, is an appropriate time for a State to 
reexamine its policies to ensure that there is a balance between, on 
the one hand, the need for statistical reliability of AYP 
determinations and students' privacy and, on the other hand, the need 
to ensure maximum inclusion of students and student subgroups in 
accountability determinations. Since receiving initial approval for its 
accountability system, every State has amended its Accountability 
Workbook with respect to the definition of AYP. Although the Department 
has worked to ensure that any amendments to a State's AYP definition 
are considered within the context of other components in the 
definition, we believe that now is an appropriate time to reexamine how 
the components fit together to ensure that sound accountability 
decisions are made.
    However, the Department recognizes that it will take some time for 
the National TAC to provide input on the types of evidence the 
Secretary should consider in reviewing a State's Accountability 
Workbook and for the Department to provide guidance to States. 
Therefore, we have revised Sec.  200.7(a)(2)(iii) to require a State to 
submit the required information in time for changes to be in effect for 
school year 2010-2011 AYP determinations using school year 2009-2010 
assessment results.
    Changes: We have revised Sec.  200.7(a)(2)(iii) to require each 
State to submit a revised Consolidated State Application Accountability 
Workbook in accordance with paragraph (a)(2)(ii) to the Department in 
time for any changes to be in effect for school year 2010-2011 AYP 
determinations based on school year 2009-2010 assessment results.
    Comment: A few commenters recommended that Sec.  200.7(a)(2)(ii)(C) 
be revised to refer to ``school-level subgroup accountability'' rather 
than ``school-level accountability.'' The commenters stated that 
students in an excluded group would still be included in the overall 
school AYP calculation and that it is important to be clear that the 
concern is with students who are excluded from school-level 
accountability determinations.
    Discussion: We believe Sec.  200.7(a)(2)(ii)(C) appropriately 
requires each State to provide information regarding the number and 
percentage of students and student subgroups that are excluded from 
school-level accountability determinations, which will include, but not 
be limited to, students from various subgroups who are excluded from 
accountability determinations. In addition to a State's minimum group 
size, other factors in a State's AYP definition affect the inclusion of 
students at the school level. For example, a State's definition of 
``full academic year'' also affects the number of students who are 
excluded from school-level accountability determinations. We believe it 
is important to understand the full impact of the components that 
converge to make up a State's definition of AYP at both the school and 
subgroup levels. Therefore, we decline to make the suggested change.
    Changes: None.
    Comment: A few commenters supported the requirements in Sec.  
200.7(a)(2)(ii) regarding the submission of Accountability Workbooks, 
but stated that the additional data collection will be costly. The 
commenters requested that Congress provide additional funding and 
resources to allow States to upgrade their data systems.
    Discussion: Section 200.7(a)(2)(ii) requires a State, in its 
Accountability Workbook, to: (a) Explain how the State's minimum group 
size yields statistically reliable information and ensures that all 
student subgroups, to the maximum extent practicable, are included in 
AYP determinations; (b) explain how components of the State's 
definition of AYP, in addition to the minimum group size, interact to 
affect the statistical reliability of the data and to ensure the 
maximum inclusion of all students and student subgroups; and (c) 
provide information regarding the number and percentage of students and 
student subgroups excluded from school accountability determinations. 
Considering that a State uses this information each year to make AYP 
determinations, the Department believes that the State should have this 
information readily available and should not have to collect additional 
data. In addition, evaluating a State's definition of AYP is a 
statutory requirement and part of what is required in an Accountability 
Workbook. We address other more specific concerns about the costs of 
revising Accountability Workbooks in the Summary of Costs and Benefits 
section.
    With regard to the commenters' request for additional funding and 
resources for a State to upgrade its data systems, the Department's 
Institute of Education Sciences (IES) Statewide Longitudinal Data 
Systems program has provided almost $122 million to 27 States to 
design, develop, and implement statewide longitudinal data systems that 
can accurately manage, analyze, disaggregate, and use individual 
student data. The President's fiscal year 2009 budget request for this 
program is $100 million, a significant increase intended to support new 
awards to States that have not yet received funding, as well as to 
support the expansion of systems in previously funded States. The 2009 
request would support approximately 32 awards for developing 
longitudinal data systems or expanding existing data systems.
    Changes: None.
    Comment: One commenter suggested that the Department identify 
States that need to change their minimum group size and require only 
those States to revise their Accountability Workbooks. Another 
commenter recommended that the Department establish a specific minimum 
group size and require States that want a different minimum group size 
to revise their Accountability Workbooks.
    Discussion: The Department believes that each State should re-
examine its minimum group size, along with the other components of its 
AYP definition, in order to ensure that the components interact to 
provide statistically reliable information while maximizing the 
inclusion of students and student subgroups in accountability 
determinations. Section 200.7(a)(2)(ii) is focused not only on a 
State's minimum group size, but also on ensuring that the entirety of a 
State's AYP definition is coherent and results in statistically 
reliable accountability determinations. For the reasons stated 
previously in this section, at this time, we do not believe

[[Page 64444]]

it is appropriate to establish one minimum group size for all States.
    Changes: None.
    Comment: One commenter expressed concern that decisions regarding 
minimum group size would be partisan and biased if States were required 
to justify their minimum group size to the National TAC.
    Discussion: The National TAC will not evaluate States' minimum 
group size. Rather, the National TAC will provide advice to the 
Department on how States should consider the interactions of the 
various components in their AYP definition and will provide 
recommendations to the Secretary that the Secretary and peer reviewers 
may consider when reviewing each State's revised Accountability 
Workbook. We note that the National TAC is a nonpartisan group that is 
subject to Federal Advisory Committee Act (FACA) requirements, thus 
guarding against any perception that its recommendations are based on 
anything but sound education policy.
    Changes: None.
    Comment: None.
    Discussion: In the course of our internal review of the proposed 
regulations, we determined that the regulations should refer to 
``minimum group size'' rather than ``minimum subgroup size'' because 
AYP determinations are made for the ``all students'' group as well as 
student subgroups.
    Changes: We have revised Sec.  200.7(a)(2)(ii) to change the term 
``minimum subgroup size'' to ``minimum group size.''

Section 200.11 Participation in NAEP

Section 200.11(c) Report Cards

    Comment: Many commenters supported the proposal in Sec.  200.11(c) 
that States and LEAs be required to include results from the NAEP on 
their report cards, stating that this information provides an important 
tool to help the public evaluate and compare results across States and 
to help parents learn more about how the rigor of their State's 
standards and assessments might compare with other States and with 
national benchmarks.
    However, several commenters recommended that the regulations 
encourage, but not require, States to include NAEP results on State and 
LEA report cards. One commenter maintained that States should have the 
discretion to determine whether information on the NAEP would be 
valuable to the public and, if so, how to disseminate it. Several 
commenters stated that it is unnecessary to require States to include 
NAEP results on State and LEA report cards because many States already 
post NAEP results on their Web sites. Other commenters recommended 
requiring NAEP results to be posted on State and LEA Web sites instead 
of requiring that they be included on SEA and LEA report cards. One 
commenter stated that State Web sites are the most appropriate vehicle 
for making publicly available comparisons of results from State 
assessments and the NAEP and for communicating the relationship between 
the NAEP and State assessments. Finally, several commenters stated that 
this proposed requirement could be viewed as an effort to push States 
to adopt a national curriculum that is aligned with the standards and 
curriculum implicit in the NAEP.
    Discussion: 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. The Secretary believes that 
NAEP data should be easily accessible and available to parents and the 
public in order to provide them with a tool for comparing how students 
in a State are performing on the NAEP with how students in the State 
are performing on State assessments.
    The Department does not believe that giving States the option to 
include NAEP data on State and LEA report cards or requiring only that 
they post NAEP results on State or LEA Web sites would be sufficient. 
We believe that including NAEP results on State and LEA report cards 
provides the greatest transparency and gives parents easy access to an 
important tool for assessing the educational performance of students in 
their State. We also do not agree with commenters who stated that 
requiring the inclusion of NAEP data on State and LEA report cards may 
be viewed as an effort to push States to adopt a national curriculum 
aligned with the standards and curriculum implicit in the NAEP. The 
purpose of requiring State and LEA report cards to include NAEP results 
is to ensure that NAEP results are easily accessible and available to 
parents and the public.
    Changes: None.
    Comment: A number of commenters supported requiring NAEP results on 
State report cards, but not on LEA report cards. One commenter stated 
that State NAEP results on LEA report cards would be irrelevant to 
parents because the data would not help a parent decide which school 
their child should attend. Other commenters stated that including the 
information on LEA report cards would lead parents and the public to 
conclude, mistakenly, that students in that LEA participated in the 
NAEP.
    Discussion: While we agree that including NAEP results on LEA 
report cards will not likely help a parent decide which school their 
child should attend, we believe that t