Compliance Agreement, 4642-4665 [E9-1537]

Download as PDF 4642 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices DEPARTMENT OF EDUCATION Compliance Agreement Department of Education. Notice of written findings and compliance agreement with the Nebraska Department of Education. AGENCY: ACTION: SUMMARY: This notice is being published in the Federal Register consistent with section 457(b)(2) of the General Education Provisions Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of Education (the Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply with the applicable program requirements until a future date. On October 8, 2008, the Department entered into a compliance agreement with the Nebraska Department of Education (NDE). Section 457(b)(2) of GEPA requires the Department to publish written findings leading to a compliance agreement, with a copy of the compliance agreement, in the Federal Register. FOR FURTHER INFORMATION CONTACT: Collette Roney, U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., room 3W210, Washington, DC 20202–6132. Telephone: (202) 401–5245. 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 accessible format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Title I of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, requires each State receiving Title I funds to satisfy certain requirements. Under Title I, each State is required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and VerDate Nov<24>2008 19:33 Jan 23, 2009 Jkt 217001 rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State’s academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each student’s academic achievement level and must determine the assessment scores (‘‘cut scores’’) that differentiate among the achievement levels. Title I also requires each State to implement a student assessment system to evaluate whether students are mastering the subject material reflected in the State’s academic content standards. By the 2005–2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3– 8 and once during grades 10–12. Further, beginning with the 2007–2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3–5, 6–9, and 10–12. In addition to a general assessment, Title I requires States to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. Prior to the 2008–2009 school year, Nebraska employed a system of local assessments. Under this system, each local educational agency (LEA) in the State developed and administered its own standards and assessment system. In August 2007, NDE submitted evidence of its standards and assessment system to the Department. The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) submitted that evidence to a panel of experts for peer review. Following that review, the Assistant Secretary concluded that NDE’s standards and assessment system did not meet a number of the Title I requirements. Subsequently, the Nebraska legislature passed Legislative Bill (LB) 1157, which requires the State to implement a statewide standards and PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 assessment system in place of the former system of local assessments. Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient ‘‘is failing to comply substantially with any requirement of law’’ applicable to Federal program funds the Department administers. Specifically, the Department is authorized to— (1) Withhold funds; (2) Compel compliance through a cease and desist order; (3) Enter into a compliance agreement with the recipient; or (4) Take any other action authorized by law. 20 U.S.C. 1234c(a). In a letter dated October 11, 2007, to Douglas Christenson, Nebraska’s thenCommissioner of Education, the Assistant Secretary notified NDE that, in order to remain eligible to receive Title I funds, it would have to enter into a compliance agreement with the Department. The purpose of a compliance agreement is ‘‘to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.’’ 20 U.S.C. 1234f(a). In order to enter into a compliance agreement with a recipient, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements. In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C 1234f(b), on July 10, 2008, Department officials conducted a public hearing in Nebraska to assess whether a compliance agreement with NDE might be appropriate. Robert Evnen of Nebraska’s State Board of Education testified at this hearing. The Department considered the testimony provided at the July 2008 public hearing and all other relevant information and materials and concluded that NDE would not be able to correct its non-compliance with Title I standards and assessment requirements immediately, particularly in light of LB 1157, Nebraska’s recently passed State law, which requires the State to implement a statewide standards and assessment system in place of the former system of local assessments. On December 19, 2008, the Assistant Secretary issued written findings, holding that compliance by NDE with the Title I standards and assessment requirements is genuinely not feasible until a future date. Under Title I, NDE was required to implement its final E:\FR\FM\26JAN3.SGM 26JAN3 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices assessment system no later than the 2005–2006 school year. The evidence that NDE submitted in August 2007 indicated that, well after the statutory deadline had passed, its locally developed standards and assessment system still did not fully meet Title I requirements. In addition, due to the enormity and complexity of the work needed to bring NDE’s standards and assessment system into full compliance, NDE cannot immediately comply with all of the Title I requirements. The Assistant Secretary also determined that a compliance agreement represents a viable means of bringing about compliance because of the steps NDE had already taken to comply and the plan it had developed for further action. The compliance agreement sets out the action plan that NDE must implement to come into compliance with Title I requirements. This plan, coupled with specific reporting requirements, will allow the Assistant Secretary to monitor closely NDE’s progress in meeting the terms of the compliance agreement. Nebraska’s Deputy Commissioner of Education, Marge Harouff, signed the compliance agreement on October 2, 2008, and the Assistant Secretary signed the compliance agreement on October 8, 2008. As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Assistant Secretary’s written findings is set forth as Appendix A and the compliance agreement is set forth as Appendix B of this notice. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/ news/fedregister. To use PDF, you must have the Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1– 888–293–6498; or in the Washington, DC area at (202) 512–1530. Note: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/ index.html. (Authority: 20 U.S.C. 1234c, 1234f) VerDate Nov<24>2008 19:33 Jan 23, 2009 Jkt 217001 Dated: January 16, 2009. Kerri L. Briggs, Assistant Secretary for Elementary and Secondary Education. Appendix A Written Findings of the Assistant Secretary for Elementary and Secondary Education Regarding the Compliance Agreement Between the U.S. Department of Education and the Nebraska Department of Education I. Introduction The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) of the U.S. Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, that the Nebraska Department of Education (NDE) has failed to comply substantially with certain requirements of Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, 20 U.S.C. 6301 et seq., and that it is genuinely not feasible for NDE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that NDE did not meet, within the statutory timeframe, a number of the Title I requirements for Nebraska’s general and alternate assessments under section 1111(b)(3) of Title I. For the following reasons, the Assistant Secretary has concluded that it would be appropriate to enter into a compliance agreement with NDE. During the effective period of the compliance agreement, which ends October 8, 2011, NDE will be eligible to receive Title I funds as long as it complies with the terms and conditions of the agreement as well as the provisions of Title I and other applicable Federal statutory and regulatory requirements. II. Relevant Statutory and Regulatory Provisions A. Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 Title I provides financial assistance, through State educational agencies, to local educational agencies to provide services in high-poverty schools to students who are failing or at risk of failing to meet the State’s student academic achievement standards. Under Title I, each State, including the District of Columbia and Puerto Rico, was required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Academic achievement standards must be aligned with the State’s academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 4643 competencies associated with each student’s academic achievement level and must determine the assessment scores (‘‘cut scores’’) that differentiate among the achievement levels. Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State’s academic content standards. By the 2005–2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3–8 and once during grades 10–12. Further, beginning with the 2007–2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3–5, 6–9, and 10– 12. A State’s assessment system must: • Be the same assessment system used to measure the achievement of all public school students in the State; • Be designed to provide coherent information about student attainment of State academic content standards across grades and subjects; • Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient (LEP) students; • Be aligned with the State’s academic content and student academic achievement standards; • Express student results in terms of the State’s student academic achievement standards; • Be valid, reliable, and of adequate technical quality for the purposes for which they are used and be consistent with nationally recognized professional and technical standards; • Involve multiple measures of student academic achievement, including measures that assess higher order thinking skills and understanding of challenging content; • Objectively measure academic achievement, knowledge, and skills without evaluating or assessing personal family beliefs and attitudes; • Enable results to be disaggregated by gender, each major racial and ethnic group, migrant status, students with disabilities, English proficiency status, and economically disadvantaged students; • Provide individual student reports; and • Enable itemized score analyses. 20 U.S.C. 6311(b)(3); 34 CFR 200.2 In addition to a general assessment, States were required to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. 34 CFR 200.6(a)(2). An alternate assessment may be based on gradelevel academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. B. The General Education Provisions Act The General Education Provisions Act (GEPA) provides a number of options when E:\FR\FM\26JAN3.SGM 26JAN3 4644 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices the Assistant Secretary determines a recipient of Department funds is ‘‘failing to comply substantially with any requirement of law applicable to such funds.’’ 20 U.S.C. 1234c. In such a case, the Assistant Secretary is authorized to: (1) Withhold funds; (2) Compel compliance through a cease and desist order; (3) Enter into a compliance agreement with the recipient; or (4) Take any other action authorized by law. 20 U.S.C. 1234c(a) Under section 457 of GEPA, the Assistant Secretary may enter into a compliance agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. The purpose of a compliance agreement is ‘‘to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.’’ 20 U.S.C. 1234f(a). Before entering into a compliance agreement with a recipient, the Assistant Secretary must hold a hearing at which the recipient, affected students and parents or their representatives, and other interested parties are invited to participate. At that hearing, the recipient has the burden of persuading the Assistant Secretary that full compliance with applicable requirements of law is not feasible until a future date. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence presented, the Assistant Secretary determines that full compliance is genuinely not feasible until a future date, the Assistant Secretary must make written findings to that effect and must publish those findings, together with the substance of any compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2). A compliance agreement must contain the terms and conditions with which the recipient must comply during the period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of the terms and conditions of the compliance agreement, the Assistant Secretary may consider the agreement to be no longer in effect, and may take any of the compliance actions set forth above. 20 U.S.C. 1234f(d). III. Analysis In deciding whether a compliance agreement between the Assistant Secretary and NDE is appropriate, the Assistant Secretary must determine whether compliance by NDE with the Title I standards and assessment requirements is genuinely not feasible until a future date. 20 U.S.C. 1234f(b)(2). A. NDE Has Failed To Comply Substantially With Title I Standards and Assessment Requirements Prior to the 2008–2009 school year, Nebraska employed a system of local assessments. Under this system, each local educational agency (LEA) in the state developed and administered its own standards and assessment system. In August 2007, NDE submitted evidence of its standards and assessment system, which the Assistant Secretary submitted to a panel of VerDate Nov<24>2008 19:33 Jan 23, 2009 Jkt 217001 experts for peer review. Following that review, the Assistant Secretary concluded that NDE’s standards and assessment system did not meet a number of the Title I requirements for standards and assessments. In April 2008, the Nebraska legislature passed Legislative Bill 1157, which requires the state to implement a statewide standards and assessment system in place of the former system of local assessments. In light of this new state law, the Assistant Secretary has determined that, to demonstrate that its statewide standards and assessment system complies with Title I requirements, NDE must submit evidence to satisfy each component of the Department’s December 2007 Standards and Assessment Peer Review Guidance: Information and Examples for Meeting Requirements of the No Child Left Behind Act of 2001 (available at: http:// www.ed.gov/policy/elsec/guid/ saaprguidance.doc). In particular, NDE must submit evidence pertaining to each of the following required components of standards and assessment systems: 1. Academic content standards; 2. Academic achievement standards; 3. Full assessment system; 4. Technical quality; 5. Alignment; 6. Inclusion; and 7. Reporting. compliance with the applicable requirements. The action plan also sets out documentation and reporting requirements with which NDE must comply. These provisions will allow the Assistant Secretary to ascertain promptly whether NDE is meeting each of its commitments under the compliance agreement. B. NDE Cannot Immediately Correct Its Noncompliance With the Title I Standards and Assessment Requirements Under Title I, NDE was required to implement its final standards and assessment system no later than the 2005–2006 school year. 20 U.S.C. 6311(b)(3). The evidence that NDE submitted in August 2007 indicated that, well after the statutory deadline had passed, its standards and assessment system still did not fully meet Title I requirements. Moreover, the state law that was passed in 2008 effectively requires Nebraska to begin anew in developing and implementing a statewide system of standards and assessments years after it was required to have compliant standards and assessments in place. Due to the enormity and complexity of the work that is needed to bring NDE’s standards and assessment system into full compliance, NDE cannot immediately comply with all of the Title I requirements. As a result, the Assistant Secretary finds that it is genuinely not feasible for NDE to come into compliance with the applicable requirements of law until a future date. Title I of the Elementary and Secondary Education Act (ESEA) of 1965 (Title I), as amended by the No Child Left Behind Act (NCLB) of 2001, requires each State receiving Title I funds to satisfy certain requirements. Each State was required to adopt academic content and achievement standards in at least mathematics, reading/language arts, and, beginning in the 2005–2006 school year, science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State’s content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each achievement level and must determine the assessment scores (‘‘cut scores’’) that differentiate among the achievement levels. Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State’s academic standards. By the 2005–2006 school year, States were required to administer mathematics and reading/language arts assessments yearly during grades 3–8 and once during grades 10–12. Further, beginning with the 2007–2008 school year, each State is required to administer a science assessment in at least one grade in each of the following grade spans: 3–5, 6–9, and 10– 12. A State’s assessment system must: • Be the same assessment system used to measure the achievement of all public school students in the State; C. NDE Can Meet the Terms and Conditions of a Compliance Agreement At the public hearing, which was held on July 10, 2008, Robert Evnen of Nebraska’s State Board of Education testified that it was not feasible for NDE to come into compliance with the Title I standards and assessment requirements until a future date. NDE has developed a comprehensive action plan, incorporated into the compliance agreement, which sets out a very specific schedule that NDE has agreed to meet for attaining compliance with the Title I standards and assessment requirements. As a result, NDE is committed to meeting a stringent, but reasonable, schedule for coming into PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 IV. Conclusion For the foregoing reasons, the Assistant Secretary finds the following: (1) That full compliance by NDE with the standards and assessment requirements of Title I is genuinely not feasible until a future date; and (2) that NDE can meet the terms and conditions of the attached compliance agreement. Therefore, the Assistant Secretary has determined that it is appropriate to enter into a compliance agreement with NDE. Dated: December 19, 2008. Kerri L. Briggs, Assistant Secretary for Elementary and Secondary Education. Appendix B Compliance Agreement Under Title I of the Elementary and Secondary Education Act Between the United States Department of Education and the Nebraska Department of Education E:\FR\FM\26JAN3.SGM 26JAN3 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices • Be designed to provide coherent information about student attainment of State standards across grades and subjects; • Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient (LEP) students; • Be aligned with the State’s content and achievement standards; • Express student results in terms of the State’s student achievement standards; • Be valid, reliable, and of adequate technical quality for the purpose for which they are used and be consistent with nationally recognized professional and technical standards; • Involve multiple measures of student academic achievement, including measures that assess higher order thinking skills and understanding of challenging content; • Objectively measure academic achievement, knowledge, and skills without evaluating or assessing personal family beliefs and attitudes; • Enable results to be disaggregated by gender, each major racial and ethnic group, migrant status, English proficiency status, students with disabilities, and economically disadvantaged students; • Provide individual student reports; and • Enable itemized score analyses. In addition to a general assessment, States were required to develop at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level achievement standards, alternate achievement standards, or modified achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. The Nebraska Department of Education (NDE) was unable to timely meet certain of the requirements for its standards and assessment system. In order to be eligible to continue to receive Title I funds while working to comply with the statutory and regulatory requirements from this point forward, Nebraska’s Commissioner of Education indicated NDE’s interest in entering into a compliance agreement with the United States Department of Education (Department). On July 10, 2008, the Department conducted a public hearing VerDate Nov<24>2008 19:33 Jan 23, 2009 Jkt 217001 regarding (1) whether NDE’s full compliance with Title I is not feasible until a future date, and (2) whether NDE is able to come into compliance with the Title I standards and assessment requirements within three years. Pursuant to this Compliance Agreement under 20 U.S.C. section 1234f, NDE must be in full compliance with the statutory and regulatory requirements, as they may exist from this point forward, no later than three years from the date of the Assistant Secretary’s written findings, a copy of which is attached to, and incorporated by reference into, this Agreement. In order to achieve compliance with the standards and assessment requirements, NDE must submit evidence to satisfy each component of the Department’s December 2007 Standards and Assessment Peer Review Guidance: Information and Examples for Meeting Requirements of the No Child Left Behind Act of 2001 (available at: http://www.ed.gov/ policy/elsec/guid/saaprguidance.doc). This includes documentation for each of the seven elements identified in that non-regulatory guidance: 1. Academic content standards; 2. Academic achievement standards; 3. Full assessment system; 4. Technical quality; 5. Alignment; 6. Inclusion; and 7. Reporting. During the duration of this Compliance Agreement, NDE is eligible to receive Title I, Part A funds if it complies with the terms and conditions of this Agreement, and all other provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements that are not specifically addressed by this Agreement. The attached action steps are a detailed plan and specific timeline for how NDE intends to come into compliance with the Title I standards and assessment requirements as they currently exist and how NDE intends to demonstrate that it has come into compliance with those requirements. Except as specified herein, these action steps are incorporated into this Agreement as though fully restated herein. All action steps may be amended by joint agreement of the parties, provided full compliance is still feasible by the expiration of the Agreement. Action steps that relate to NDE’s science assessment that have due dates beyond the expiration of this agreement, and only these particular action steps, are not incorporated herein; failure to complete these particular action steps prior PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 4645 to the expiration of the agreement shall not be relied upon as a basis for finding that NDE has failed to comply with the terms of the compliance agreement. By agreeing to the action steps that are incorporated into this Agreement, the Department expresses no opinion on the legal sufficiency of the standards and assessment system that will result from the completion of those action steps. NDE agrees that the Department’s approval of its standards and assessment system will be handled through the Department’s peer review process and that NDE’s successful completion of the action steps incorporated herein does not bind the Department to approve NDE’s standards and assessment system. In addition to all terms and conditions set forth above, NDE agrees that its continued eligibility to receive Title I, Part A funds is predicated upon its compliance with all statutory and regulatory requirements of that program that are not specifically addressed by this Agreement, including any amendments to the No Child Left Behind Act of 2001 enacted after the effective date of this Agreement. This agreement is predicated upon NDE’s compliance from this point forward with Federal and State laws as they now exist or as they may be amended in the future. If NDE fails to comply with any of the terms and conditions of this Agreement, including the action steps attached hereto that are incorporated herein as set forth above, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including the withholding of funds or the issuance of a cease and desist order. 20 U.S.C. 1234f(d). It is so agreed. For the Nebraska Department of Education. Dated: October 2, 2008. Marge Harouff, Deputy Commissioner. For the United States Department of Education. Dated: October 8, 2008. Kerri L. Briggs, Assistant Secretary, Office of Elementary and Secondary Education. Date this Compliance Agreement becomes effective: Oct 8, 2008. Expiration Date of this Agreement: Oct 8, 2011. 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E9–1537 Filed 1–23–09; 8:45 am]

Agencies

[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Notices]
[Pages 4642-4665]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1537]



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Part VII





Department of Education





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Compliance Agreement; OMB Final Decisions; Notice

Federal Register / Vol. 74 , No. 15 / Monday, January 26, 2009 / 
Notices

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DEPARTMENT OF EDUCATION


Compliance Agreement

AGENCY: Department of Education.

ACTION: Notice of written findings and compliance agreement with the 
Nebraska Department of Education.

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SUMMARY: This notice is being published in the Federal Register 
consistent with section 457(b)(2) of the General Education Provisions 
Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of 
Education (the Department) to enter into a compliance agreement with a 
recipient that is failing to comply substantially with Federal program 
requirements. In order to enter into a compliance agreement, the 
Department must determine, in written findings, that the recipient 
cannot comply with the applicable program requirements until a future 
date.
    On October 8, 2008, the Department entered into a compliance 
agreement with the Nebraska Department of Education (NDE). Section 
457(b)(2) of GEPA requires the Department to publish written findings 
leading to a compliance agreement, with a copy of the compliance 
agreement, in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Collette Roney, U.S. Department of 
Education, Office of Elementary and Secondary Education, 400 Maryland 
Avenue, SW., room 3W210, Washington, DC 20202-6132. Telephone: (202) 
401-5245.
    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 
accessible format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:
    Title I of the Elementary and Secondary Education Act of 1965 
(Title I), as amended by the No Child Left Behind Act of 2001, requires 
each State receiving Title I funds to satisfy certain requirements.
    Under Title I, each State is required to adopt academic content and 
student academic achievement standards in at least mathematics, reading 
or language arts, and science. These standards must include the same 
knowledge and levels of achievement expected of all public school 
students in the State. Content standards must specify what all students 
are expected to know and be able to do; contain coherent and rigorous 
content; and encourage the teaching of advanced skills. Achievement 
standards must be aligned with the State's academic content standards 
and must describe at least three levels of proficiency to determine how 
well students in each grade are mastering the content standards. A 
State must provide descriptions of the competencies associated with 
each student's academic achievement level and must determine the 
assessment scores (``cut scores'') that differentiate among the 
achievement levels.
    Title I also requires each State to implement a student assessment 
system to evaluate whether students are mastering the subject material 
reflected in the State's academic content standards. By the 2005-2006 
school year, States were required to administer mathematics and reading 
or language arts assessments yearly during grades 3-8 and once during 
grades 10-12. Further, beginning with the 2007-2008 school year, each 
State was required to administer a science assessment in at least one 
grade in each of the following grade spans: 3-5, 6-9, and 10-12.
    In addition to a general assessment, Title I requires States to 
develop and administer at least one alternate assessment for students 
with disabilities who cannot participate in the general assessment, 
with or without accommodations. An alternate assessment may be based on 
grade-level academic achievement standards, alternate academic 
achievement standards, or modified academic achievement standards. Like 
the general assessment, any alternate assessment must satisfy the 
requirements for high technical quality, including validity, 
reliability, accessibility, objectivity, and consistency with 
nationally recognized professional and technical standards.
    Prior to the 2008-2009 school year, Nebraska employed a system of 
local assessments. Under this system, each local educational agency 
(LEA) in the State developed and administered its own standards and 
assessment system. In August 2007, NDE submitted evidence of its 
standards and assessment system to the Department. The Assistant 
Secretary for Elementary and Secondary Education (Assistant Secretary) 
submitted that evidence to a panel of experts for peer review. 
Following that review, the Assistant Secretary concluded that NDE's 
standards and assessment system did not meet a number of the Title I 
requirements. Subsequently, the Nebraska legislature passed Legislative 
Bill (LB) 1157, which requires the State to implement a statewide 
standards and assessment system in place of the former system of local 
assessments.
    Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies 
available to the Department when it determines that a recipient ``is 
failing to comply substantially with any requirement of law'' 
applicable to Federal program funds the Department administers. 
Specifically, the Department is authorized to--
    (1) Withhold funds;
    (2) Compel compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law.

20 U.S.C. 1234c(a).
    In a letter dated October 11, 2007, to Douglas Christenson, 
Nebraska's then-Commissioner of Education, the Assistant Secretary 
notified NDE that, in order to remain eligible to receive Title I 
funds, it would have to enter into a compliance agreement with the 
Department. The purpose of a compliance agreement is ``to bring the 
recipient into full compliance with the applicable requirements of law 
as soon as feasible and not to excuse or remedy past violations of such 
requirements.'' 20 U.S.C. 1234f(a). In order to enter into a compliance 
agreement with a recipient, the Department must determine, in written 
findings, that the recipient cannot comply until a future date with the 
applicable program requirements.
    In accordance with the requirements of section 457(b) of GEPA, 20 
U.S.C 1234f(b), on July 10, 2008, Department officials conducted a 
public hearing in Nebraska to assess whether a compliance agreement 
with NDE might be appropriate. Robert Evnen of Nebraska's State Board 
of Education testified at this hearing. The Department considered the 
testimony provided at the July 2008 public hearing and all other 
relevant information and materials and concluded that NDE would not be 
able to correct its non-compliance with Title I standards and 
assessment requirements immediately, particularly in light of LB 1157, 
Nebraska's recently passed State law, which requires the State to 
implement a statewide standards and assessment system in place of the 
former system of local assessments.
    On December 19, 2008, the Assistant Secretary issued written 
findings, holding that compliance by NDE with the Title I standards and 
assessment requirements is genuinely not feasible until a future date. 
Under Title I, NDE was required to implement its final

[[Page 4643]]

assessment system no later than the 2005-2006 school year. The evidence 
that NDE submitted in August 2007 indicated that, well after the 
statutory deadline had passed, its locally developed standards and 
assessment system still did not fully meet Title I requirements. In 
addition, due to the enormity and complexity of the work needed to 
bring NDE's standards and assessment system into full compliance, NDE 
cannot immediately comply with all of the Title I requirements.
    The Assistant Secretary also determined that a compliance agreement 
represents a viable means of bringing about compliance because of the 
steps NDE had already taken to comply and the plan it had developed for 
further action. The compliance agreement sets out the action plan that 
NDE must implement to come into compliance with Title I requirements. 
This plan, coupled with specific reporting requirements, will allow the 
Assistant Secretary to monitor closely NDE's progress in meeting the 
terms of the compliance agreement.
    Nebraska's Deputy Commissioner of Education, Marge Harouff, signed 
the compliance agreement on October 2, 2008, and the Assistant 
Secretary signed the compliance agreement on October 8, 2008.
    As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), 
the text of the Assistant Secretary's written findings is set forth as 
Appendix A and the compliance agreement is set forth as Appendix B of 
this notice.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF, you must have the Adobe Acrobat Reader, which is 
available free at this site. If you have questions about using PDF, 
call the U.S. Government Printing Office (GPO), toll free, at 1-888-
293-6498; or in the Washington, DC area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/
nara/index.html.


(Authority: 20 U.S.C. 1234c, 1234f)

    Dated: January 16, 2009.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.

Appendix A

Written Findings of the Assistant Secretary for Elementary and 
Secondary Education Regarding the Compliance Agreement Between the U.S. 
Department of Education and the Nebraska Department of Education

I. Introduction

    The Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) of the U.S. Department of Education 
(Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, 
that the Nebraska Department of Education (NDE) has failed to comply 
substantially with certain requirements of Title I, Part A of the 
Elementary and Secondary Education Act of 1965 (Title I), as amended 
by the No Child Left Behind Act of 2001, 20 U.S.C. 6301 et seq., and 
that it is genuinely not feasible for NDE to achieve full compliance 
immediately. Specifically, the Assistant Secretary has determined 
that NDE did not meet, within the statutory timeframe, a number of 
the Title I requirements for Nebraska's general and alternate 
assessments under section 1111(b)(3) of Title I.
    For the following reasons, the Assistant Secretary has concluded 
that it would be appropriate to enter into a compliance agreement 
with NDE. During the effective period of the compliance agreement, 
which ends October 8, 2011, NDE will be eligible to receive Title I 
funds as long as it complies with the terms and conditions of the 
agreement as well as the provisions of Title I and other applicable 
Federal statutory and regulatory requirements.

II. Relevant Statutory and Regulatory Provisions

A. Title I, Part A of the Elementary and Secondary Education Act of 
1965, as amended by the No Child Left Behind Act of 2001

    Title I provides financial assistance, through State educational 
agencies, to local educational agencies to provide services in high-
poverty schools to students who are failing or at risk of failing to 
meet the State's student academic achievement standards. Under Title 
I, each State, including the District of Columbia and Puerto Rico, 
was required to adopt academic content and student academic 
achievement standards in at least mathematics, reading or language 
arts, and science. These standards must include the same knowledge 
and levels of achievement expected of all public school students in 
the State. Content standards must specify what all students are 
expected to know and be able to do; contain coherent and rigorous 
content; and encourage the teaching of advanced skills. Academic 
achievement standards must be aligned with the State's academic 
content standards and must describe at least three levels of 
proficiency to determine how well students in each grade are 
mastering the content standards. A State must provide descriptions 
of the competencies associated with each student's academic 
achievement level and must determine the assessment scores (``cut 
scores'') that differentiate among the achievement levels.
    Each State was also required to implement a student assessment 
system used to evaluate whether students are mastering the subject 
material reflected in the State's academic content standards. By the 
2005-2006 school year, States were required to administer 
mathematics and reading or language arts assessments yearly during 
grades 3-8 and once during grades 10-12. Further, beginning with the 
2007-2008 school year, each State was required to administer a 
science assessment in at least one grade in each of the following 
grade spans: 3-5, 6-9, and 10-12. A State's assessment system must:
     Be the same assessment system used to measure the 
achievement of all public school students in the State;
     Be designed to provide coherent information about 
student attainment of State academic content standards across grades 
and subjects;
     Provide for the inclusion of all students in the grades 
assessed, including students with disabilities and limited English 
proficient (LEP) students;
     Be aligned with the State's academic content and 
student academic achievement standards;
     Express student results in terms of the State's student 
academic achievement standards;
     Be valid, reliable, and of adequate technical quality 
for the purposes for which they are used and be consistent with 
nationally recognized professional and technical standards;
     Involve multiple measures of student academic 
achievement, including measures that assess higher order thinking 
skills and understanding of challenging content;
     Objectively measure academic achievement, knowledge, 
and skills without evaluating or assessing personal family beliefs 
and attitudes;
     Enable results to be disaggregated by gender, each 
major racial and ethnic group, migrant status, students with 
disabilities, English proficiency status, and economically 
disadvantaged students;
     Provide individual student reports; and
     Enable itemized score analyses.

20 U.S.C. 6311(b)(3); 34 CFR 200.2
    In addition to a general assessment, States were required to 
develop and administer at least one alternate assessment for 
students with disabilities who cannot participate in the general 
assessment, with or without accommodations. 34 CFR 200.6(a)(2). An 
alternate assessment may be based on grade-level academic 
achievement standards, alternate academic achievement standards, or 
modified academic achievement standards. Like the general 
assessment, any alternate assessment must satisfy the requirements 
for high technical quality, including validity, reliability, 
accessibility, objectivity, and consistency with nationally 
recognized professional and technical standards.

B. The General Education Provisions Act

    The General Education Provisions Act (GEPA) provides a number of 
options when

[[Page 4644]]

the Assistant Secretary determines a recipient of Department funds 
is ``failing to comply substantially with any requirement of law 
applicable to such funds.'' 20 U.S.C. 1234c. In such a case, the 
Assistant Secretary is authorized to:
    (1) Withhold funds;
    (2) Compel compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law.

20 U.S.C. 1234c(a)

    Under section 457 of GEPA, the Assistant Secretary may enter 
into a compliance agreement with a recipient that is failing to 
comply substantially with specific program requirements. 20 U.S.C. 
1234f. The purpose of a compliance agreement is ``to bring the 
recipient into full compliance with the applicable requirements of 
law as soon as feasible and not to excuse or remedy past violations 
of such requirements.'' 20 U.S.C. 1234f(a). Before entering into a 
compliance agreement with a recipient, the Assistant Secretary must 
hold a hearing at which the recipient, affected students and parents 
or their representatives, and other interested parties are invited 
to participate. At that hearing, the recipient has the burden of 
persuading the Assistant Secretary that full compliance with 
applicable requirements of law is not feasible until a future date. 
20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence 
presented, the Assistant Secretary determines that full compliance 
is genuinely not feasible until a future date, the Assistant 
Secretary must make written findings to that effect and must publish 
those findings, together with the substance of any compliance 
agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
    A compliance agreement must contain the terms and conditions 
with which the recipient must comply during the period that 
agreement is in effect. 20 U.S.C. 1234f(c)(2). If the recipient 
fails to comply with any of the terms and conditions of the 
compliance agreement, the Assistant Secretary may consider the 
agreement to be no longer in effect, and may take any of the 
compliance actions set forth above. 20 U.S.C. 1234f(d).

III. Analysis

    In deciding whether a compliance agreement between the Assistant 
Secretary and NDE is appropriate, the Assistant Secretary must 
determine whether compliance by NDE with the Title I standards and 
assessment requirements is genuinely not feasible until a future 
date. 20 U.S.C. 1234f(b)(2).

A. NDE Has Failed To Comply Substantially With Title I Standards 
and Assessment Requirements

    Prior to the 2008-2009 school year, Nebraska employed a system 
of local assessments. Under this system, each local educational 
agency (LEA) in the state developed and administered its own 
standards and assessment system. In August 2007, NDE submitted 
evidence of its standards and assessment system, which the Assistant 
Secretary submitted to a panel of experts for peer review. Following 
that review, the Assistant Secretary concluded that NDE's standards 
and assessment system did not meet a number of the Title I 
requirements for standards and assessments.
    In April 2008, the Nebraska legislature passed Legislative Bill 
1157, which requires the state to implement a statewide standards 
and assessment system in place of the former system of local 
assessments. In light of this new state law, the Assistant Secretary 
has determined that, to demonstrate that its statewide standards and 
assessment system complies with Title I requirements, NDE must 
submit evidence to satisfy each component of the Department's 
December 2007 Standards and Assessment Peer Review Guidance: 
Information and Examples for Meeting Requirements of the No Child 
Left Behind Act of 2001 (available at: http://www.ed.gov/policy/
elsec/guid/saaprguidance.doc). In particular, NDE must submit 
evidence pertaining to each of the following required components of 
standards and assessment systems:
    1. Academic content standards;
    2. Academic achievement standards;
    3. Full assessment system;
    4. Technical quality;
    5. Alignment;
    6. Inclusion; and
    7. Reporting.

B. NDE Cannot Immediately Correct Its Noncompliance With the Title 
I Standards and Assessment Requirements

    Under Title I, NDE was required to implement its final standards 
and assessment system no later than the 2005-2006 school year. 20 
U.S.C. 6311(b)(3). The evidence that NDE submitted in August 2007 
indicated that, well after the statutory deadline had passed, its 
standards and assessment system still did not fully meet Title I 
requirements. Moreover, the state law that was passed in 2008 
effectively requires Nebraska to begin anew in developing and 
implementing a statewide system of standards and assessments years 
after it was required to have compliant standards and assessments in 
place. Due to the enormity and complexity of the work that is needed 
to bring NDE's standards and assessment system into full compliance, 
NDE cannot immediately comply with all of the Title I requirements. 
As a result, the Assistant Secretary finds that it is genuinely not 
feasible for NDE to come into compliance with the applicable 
requirements of law until a future date.

C. NDE Can Meet the Terms and Conditions of a Compliance Agreement

    At the public hearing, which was held on July 10, 2008, Robert 
Evnen of Nebraska's State Board of Education testified that it was 
not feasible for NDE to come into compliance with the Title I 
standards and assessment requirements until a future date. NDE has 
developed a comprehensive action plan, incorporated into the 
compliance agreement, which sets out a very specific schedule that 
NDE has agreed to meet for attaining compliance with the Title I 
standards and assessment requirements. As a result, NDE is committed 
to meeting a stringent, but reasonable, schedule for coming into 
compliance with the applicable requirements. The action plan also 
sets out documentation and reporting requirements with which NDE 
must comply. These provisions will allow the Assistant Secretary to 
ascertain promptly whether NDE is meeting each of its commitments 
under the compliance agreement.

IV. Conclusion

    For the foregoing reasons, the Assistant Secretary finds the 
following: (1) That full compliance by NDE with the standards and 
assessment requirements of Title I is genuinely not feasible until a 
future date; and (2) that NDE can meet the terms and conditions of 
the attached compliance agreement. Therefore, the Assistant 
Secretary has determined that it is appropriate to enter into a 
compliance agreement with NDE.

    Dated: December 19, 2008.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.

Appendix B

Compliance Agreement Under Title I of the Elementary and Secondary 
Education Act Between the United States Department of Education and the 
Nebraska Department of Education

    Title I of the Elementary and Secondary Education Act (ESEA) of 
1965 (Title I), as amended by the No Child Left Behind Act (NCLB) of 
2001, requires each State receiving Title I funds to satisfy certain 
requirements.
    Each State was required to adopt academic content and 
achievement standards in at least mathematics, reading/language 
arts, and, beginning in the 2005-2006 school year, science. These 
standards must include the same knowledge and levels of achievement 
expected of all public school students in the State. Content 
standards must specify what all students are expected to know and be 
able to do; contain coherent and rigorous content; and encourage the 
teaching of advanced skills. Achievement standards must be aligned 
with the State's content standards and must describe at least three 
levels of proficiency to determine how well students in each grade 
are mastering the content standards. A State must provide 
descriptions of the competencies associated with each achievement 
level and must determine the assessment scores (``cut scores'') that 
differentiate among the achievement levels.
    Each State was also required to implement a student assessment 
system used to evaluate whether students are mastering the subject 
material reflected in the State's academic standards. By the 2005-
2006 school year, States were required to administer mathematics and 
reading/language arts assessments yearly during grades 3-8 and once 
during grades 10-12. Further, beginning with the 2007-2008 school 
year, each State is required to administer a science assessment in 
at least one grade in each of the following grade spans: 3-5, 6-9, 
and 10-12. A State's assessment system must:
     Be the same assessment system used to measure the 
achievement of all public school students in the State;

[[Page 4645]]

     Be designed to provide coherent information about 
student attainment of State standards across grades and subjects;
     Provide for the inclusion of all students in the grades 
assessed, including students with disabilities and limited English 
proficient (LEP) students;
     Be aligned with the State's content and achievement 
standards;
     Express student results in terms of the State's student 
achievement standards;
     Be valid, reliable, and of adequate technical quality 
for the purpose for which they are used and be consistent with 
nationally recognized professional and technical standards;
     Involve multiple measures of student academic 
achievement, including measures that assess higher order thinking 
skills and understanding of challenging content;
     Objectively measure academic achievement, knowledge, 
and skills without evaluating or assessing personal family beliefs 
and attitudes;
     Enable results to be disaggregated by gender, each 
major racial and ethnic group, migrant status, English proficiency 
status, students with disabilities, and economically disadvantaged 
students;
     Provide individual student reports; and
     Enable itemized score analyses.
    In addition to a general assessment, States were required to 
develop at least one alternate assessment for students with 
disabilities who cannot participate in the general assessment, with 
or without accommodations. An alternate assessment may be based on 
grade-level achievement standards, alternate achievement standards, 
or modified achievement standards. Like the general assessment, any 
alternate assessment must satisfy the requirements for high 
technical quality, including validity, reliability, accessibility, 
objectivity, and consistency with nationally recognized professional 
and technical standards.
    The Nebraska Department of Education (NDE) was unable to timely 
meet certain of the requirements for its standards and assessment 
system. In order to be eligible to continue to receive Title I funds 
while working to comply with the statutory and regulatory 
requirements from this point forward, Nebraska's Commissioner of 
Education indicated NDE's interest in entering into a compliance 
agreement with the United States Department of Education 
(Department). On July 10, 2008, the Department conducted a public 
hearing regarding (1) whether NDE's full compliance with Title I is 
not feasible until a future date, and (2) whether NDE is able to 
come into compliance with the Title I standards and assessment 
requirements within three years.
    Pursuant to this Compliance Agreement under 20 U.S.C. section 
1234f, NDE must be in full compliance with the statutory and 
regulatory requirements, as they may exist from this point forward, 
no later than three years from the date of the Assistant Secretary's 
written findings, a copy of which is attached to, and incorporated 
by reference into, this Agreement. In order to achieve compliance 
with the standards and assessment requirements, NDE must submit 
evidence to satisfy each component of the Department's December 2007 
Standards and Assessment Peer Review Guidance: Information and 
Examples for Meeting Requirements of the No Child Left Behind Act of 
2001 (available at: http://www.ed.gov/policy/elsec/guid/
saaprguidance.doc). This includes documentation for each of the 
seven elements identified in that non-regulatory guidance:
    1. Academic content standards;
    2. Academic achievement standards;
    3. Full assessment system;
    4. Technical quality;
    5. Alignment;
    6. Inclusion; and
    7. Reporting.
    During the duration of this Compliance Agreement, NDE is 
eligible to receive Title I, Part A funds if it complies with the 
terms and conditions of this Agreement, and all other provisions of 
Title I, Part A and other applicable Federal statutory and 
regulatory requirements that are not specifically addressed by this 
Agreement. The attached action steps are a detailed plan and 
specific timeline for how NDE intends to come into compliance with 
the Title I standards and assessment requirements as they currently 
exist and how NDE intends to demonstrate that it has come into 
compliance with those requirements. Except as specified herein, 
these action steps are incorporated into this Agreement as though 
fully restated herein. All action steps may be amended by joint 
agreement of the parties, provided full compliance is still feasible 
by the expiration of the Agreement. Action steps that relate to 
NDE's science assessment that have due dates beyond the expiration 
of this agreement, and only these particular action steps, are not 
incorporated herein; failure to complete these particular action 
steps prior to the expiration of the agreement shall not be relied 
upon as a basis for finding that NDE has failed to comply with the 
terms of the compliance agreement.
    By agreeing to the action steps that are incorporated into this 
Agreement, the Department expresses no opinion on the legal 
sufficiency of the standards and assessment system that will result 
from the completion of those action steps. NDE agrees that the 
Department's approval of its standards and assessment system will be 
handled through the Department's peer review process and that NDE's 
successful completion of the action steps incorporated herein does 
not bind the Department to approve NDE's standards and assessment 
system.
    In addition to all terms and conditions set forth above, NDE 
agrees that its continued eligibility to receive Title I, Part A 
funds is predicated upon its compliance with all statutory and 
regulatory requirements of that program that are not specifically 
addressed by this Agreement, including any amendments to the No 
Child Left Behind Act of 2001 enacted after the effective date of 
this Agreement. This agreement is predicated upon NDE's compliance 
from this point forward with Federal and State laws as they now 
exist or as they may be amended in the future.
    If NDE fails to comply with any of the terms and conditions of 
this Agreement, including the action steps attached hereto that are 
incorporated herein as set forth above, the Department may consider 
the Agreement no longer in effect and may take any action authorized 
by law, including the withholding of funds or the issuance of a 
cease and desist order. 20 U.S.C. 1234f(d).
    It is so agreed.

    For the Nebraska Department of Education.

Dated: October 2, 2008.
Marge Harouff,
Deputy Commissioner.

    For the United States Department of Education.

Dated: October 8, 2008.
Kerri L. Briggs,
Assistant Secretary, Office of Elementary and Secondary Education.

    Date this Compliance Agreement becomes effective: Oct 8, 2008.
    Expiration Date of this Agreement: Oct 8, 2011.

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