Notice of Final Priorities, Requirements, Definitions, and Selection Criteria, 21986-21997 [2011-9479]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Notices]
[Pages 21986-21997]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9479]



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Vol. 76

Tuesday,

No. 75

April 19, 2011

Part IV





Department of Education





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Notice of Final Priorities, Requirements, Definitions, and Selection 
Criteria; Notice

Federal Register / Vol. 76 , No. 75 / Tuesday, April 19, 2011 / 
Notices

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DEPARTMENT OF EDUCATION


Notice of Final Priorities, Requirements, Definitions, and 
Selection Criteria

    Enhanced Assessment Instruments; Catalog of Federal Domestic 
Assistance (CFDA) Number: 84.368.

EAGENCY:  Office of Elementary and Secondary Education, Department of 
Education.

ACTION:  Notice of final priorities, requirements, definitions, and 
selection criteria.

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SUMMARY:  The Assistant Secretary for Elementary and Secondary 
Education announces priorities, requirements, definitions, and 
selection criteria under the Enhanced Assessment Instruments Grant 
program, also called the Enhanced Assessment Grants (EAG) program. The 
Assistant Secretary may use one or more of these priorities, 
requirements, definitions, and selection criteria for competitions in 
fiscal year (FY) 2011 and later years. We take these actions to focus 
Federal financial assistance on the pressing need to improve the 
assessment instruments and systems used by States to accurately measure 
student academic achievement and growth under the Elementary and 
Secondary Education Act of 1965, as amended (ESEA).

DATES: Effective Date: These priorities, requirements, definitions, and 
selection criteria are effective May 19, 2011.

FOR FURTHER INFORMATION CONTACT: Collette Roney, U.S. Department of 
Education, 400 Maryland Avenue, SW., Room 3W210, Washington, DC 20202. 
Telephone: (202) 401-5245. E-mail: Collette.Roney@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The purpose of the EAG program is to enhance 
the quality of assessment instruments and systems used by States for 
measuring the academic achievement of elementary and secondary school 
students.
    Program Authority: 20 U.S.C. 7301a.
    Public Comment: We published a notice of proposed priorities, 
requirements, definitions, and selection criteria for this program in 
the Federal Register on January 7, 2011 (76 FR 1138). That notice 
contained background information and our reasons for proposing the 
particular priorities, requirements, definitions, and selection 
criteria. In response to comments we received on the notice, we have 
made revisions to Priority 1--English Language Proficiency Assessment 
System (ELP Priority), Priority 2--Collaborative Efforts Among States 
(Collaborative Efforts Priority), and the requirements, definitions, 
and selection criteria.
    Public Comment: In response to our invitation in the notice of 
proposed priorities, requirements, definitions, and selection criteria, 
15 parties submitted comments. We group major issues according to 
subject. Generally, we do not address technical and other minor 
changes.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priorities, requirements, definitions, and 
selection criteria since publication of the notice of proposed 
priorities, requirements, definitions, and selection criteria follows.

Priority 1--English Language Proficiency (ELP) Assessment System

    Comment: Many commenters expressed support for the ELP Priority and 
its broad objective of promoting the development of high-quality ELP 
assessment systems. Commenters stated that the priority addresses 
assessment needs unique to English learners and that improvements in 
assessments used to measure English learners' progress in and 
attainment of English proficiency will support improvements in 
curriculum and instruction for English learners, help raise their 
educational achievement, and help close achievement gaps between 
English learners and their English proficient-peers. Commenters also 
stated that the priority promotes innovative, high-quality assessments 
that are aligned with common college- and career-ready standards, which 
will help prepare English learners for higher education and careers and 
ensure that English learners have access to the same rigorous academic 
content as all students. Another commenter stated that the use of 
multiple measures of both academic and English proficiency will provide 
more ongoing feedback to educators as well as students and their 
families and offers the promise of greater validity and reliability in 
assessments for the diverse population of English learners.
    Discussion: We agree with the commenters that the development of 
high-quality ELP assessments aligned with ELP standards that in turn 
correspond to a common set of college- and career-ready standards in 
English language arts and mathematics are likely to contribute to 
improved teaching and learning for English learners. We appreciate the 
commenters' recognition that we designed the ELP Priority to support 
the development of high-quality diagnostic and summative assessments 
that measure students' abilities in each of the four language domains 
(reading, writing, speaking, and listening), in order to meet the 
significant need for ELP assessments that correspond to college- and 
career-ready standards held in common by multiple States.
    Changes: None.
    Comment: Some commenters recommended that the ELP assessment system 
outlined in the ELP Priority be defined more explicitly and suggested 
that the priority explicitly support the development of benchmark and 
formative assessments as well as diagnostic and summative assessments. 
The commenters expressed concern that formative assessments may be 
under-emphasized in the resulting ELP assessment systems if they are 
not explicitly included in the priority, and stated that many educators 
prefer an ELP assessment system that includes benchmark and formative 
assessments. One commenter stressed that the focus on assessments 
developed under this priority should be on measuring students' progress 
towards English proficiency. Another commenter recommended that the 
limited amount of funds for the EAG program be focused on the 
development of summative assessments only.
    Discussion: We believe that two types of assessments are 
particularly important for English learners: (1) Diagnostic assessments 
(e.g., screener or placement tests), which can be used to determine 
whether a student should be classified as an English learner, and (2) 
summative assessments, which can be used to determine whether an 
English learner has made progress toward and achieved grade-level 
English proficiency and should no longer be classified as an English 
learner. The ELP Priority does not preclude an applicant from including 
benchmark or formative assessments in the ELP assessment system it 
proposes to develop. However, because of the importance of diagnostic 
and summative assessments to the implementation of Federal education 
programs such as Title III of the ESEA, and given the limited resources 
available, we decline to expand the ELP Priority to require more than 
the development of diagnostic and summative ELP assessments.
    We agree that clarification of the components for an ELP assessment 
system developed under the ELP Priority would be helpful and have added 
a definition of English language

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proficiency (ELP) assessment system, for purposes of the ELP Priority.
    Changes: We have added a definition of ELP assessment system to the 
final definitions. The definition specifies that, for purposes of the 
ELP Priority, ELP assessment system means a system of assessments that 
includes, at a minimum, diagnostic (e.g., screener or placement) and 
summative assessments at each grade level from kindergarten through 
grade 12 that cover the four language domains of reading, writing, 
speaking, and listening, as required by section 3113(b)(2) of the ESEA, 
and that meets all other requirements of the priority. Consistent with 
this change, we also have revised paragraphs (a)(2) and (a)(3) of the 
ELP priority to include both screener and placement assessments as 
examples of diagnostic assessments.
    Comment: One commenter noted that schools implementing the ELP 
assessment systems developed under the ELP Priority will need time to 
transition to the new assessments and stated that the proposed 
priorities, requirements, definitions, and selection criteria did not 
address how an applicant would need to approach such a transition.
    Discussion: Given the four-year project period we are planning for 
grants under this program, we anticipate that some of the actions 
needed to support the transition to new ELP assessment systems may take 
place after the end of the project period, while other actions (e.g., 
developing professional capacity and outreach as described in the 
selection criteria) will occur during the project period. Because 
operational administration of the assessments is not required during 
the project period, we are not requiring a complete transition plan. 
Transition issues will be addressed by applicants, as necessary, in 
response to selection criterion (e), the professional capacity and 
outreach selection criterion, and we decline to add any additional 
requirements relating to transition, as some of these activities may 
occur outside the grant period. We note, in addition, that the 
Department routinely provides guidance to the field on current 
implementation issues and will continue to do so in the future.
    Changes: None.
    Comment: Some commenters expressed concern that the ELP Priority 
does not adequately address coordination between the grants to be 
awarded under the EAG program and grants already awarded under the RTTA 
program. The commenters recommended that the ELP Priority require more 
specific coordination between EAG and RTTA grants. They also suggested 
that we ensure that ELP assessments developed under the EAG program be 
embedded in work on assessments under the RTTA program, particularly 
because of the academic language that students likely will need in 
order to access the assessments to be developed under the RTTA grants.
    Discussion: We understand the importance of ensuring that projects 
funded under the EAG program and other Department programs related to 
assessments coordinate efforts where appropriate. We plan to facilitate 
coordination and technical assistance, as needed, across newly awarded 
EAG projects and the RTTA grants. EAG and RTTA grantees will be 
required to participate in such technical assistance and other 
activities conducted or facilitated by the Department or its designees. 
We are clarifying this expectation for coordination by adding language 
to requirement (b) that will require EAG grantees to coordinate with 
the RTTA program.
    Changes: We have revised requirement (b) by adding a phrase that 
requires EAG grantees to coordinate with the RTTA program in the 
development of assessments under the EAG program.
    Comment: One commenter stated that States will need guidance and 
technical support from the Department on such implementation issues as 
accountability, timeframes, and benchmarks for English learners' 
linguistic and academic progress once States have developed their ELP 
assessments. The commenter also asserted that, if the reauthorization 
of the ESEA occurs prior to the development and implementation of ELP 
assessment systems funded under the EAG program, a reauthorized ESEA 
should not constrain such work.
    Discussion: We recognize that the Department will need to work with 
grantees and provide technical assistance on implementing new ELP 
assessment systems. If a reauthorized ESEA requires changes to the 
projects awarded under the EAG program, we will work with grantees to 
make the necessary changes and provide guidance to the field, as 
appropriate.
    Changes: None.
    Comment: A few commenters expressed concern with the examples of 
linguistic components of language included in paragraph (a)(7) of the 
proposed ELP Priority. One commenter suggested adding ``semantics and 
graphophonemic'' to the list of examples. Another commenter suggested 
removing the list of examples. One commenter stated that the linguistic 
components should be embedded within ELP standards and that 
determinations of students' English proficiency should not be limited 
to the sum of students' abilities on any group of specific linguistic 
components of language. This commenter expressed concern that the ELP 
Priority could be interpreted as requiring the ELP assessment systems 
to provide subscores on discrete linguistic components. Another 
commenter stated that the ELP Priority should specify that measurement 
of any linguistic component should be driven by the functions of 
comprehension and expression. This commenter suggested revising the 
priority to require the assessments to reflect the linguistic 
components of language or demonstrate students' control over linguistic 
components of language.
    Discussion: Based on consideration of the comments and our further 
review of this issue prompted by the comments, we revised the list of 
the examples of linguistic components of language by removing 
``vocabulary'' from the list. Use of the abbreviation ``e.g.'' in the 
parenthetical indicates that the list is not exhaustive or definitive.
    While a valid and reliable ELP assessment system should consider 
students' control over the linguistic components of language, we do not 
intend to require that the ELP assessment systems generate subscores 
for the linguistic components of language. However, we do intend to 
require that the ELP assessment systems generate a valid and reliable 
measure of students' abilities in each of the four language domains and 
are revising the priority accordingly.
    Changes: We have revised paragraph (a)(7) of the ELP Priority to 
indicate that the ELP assessment systems must ensure that the measures 
of students' English proficiency consider students' control over the 
linguistic components of language (e.g., phonology, syntax, 
morphology). We also have revised paragraph (c)(2) of the ELP Priority 
to state that ELP assessment systems developed under the priority must 
provide a valid and reliable measure of students' abilities in each of 
the four language domains and a comprehensive ELP score based on all 
four domains, with each language domain score making a significant 
contribution to the comprehensive ELP score, at each proficiency level. 
To be consistent with revisions to paragraph (c)(2) of the ELP 
Priority, we have revised paragraph (a)(9) of the ELP Priority to list 
the four language domains.
    Comment: Some commenters expressed concern about references to the 
uses of data from the ELP

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assessment systems for evaluations of teacher and principal 
effectiveness. A few commenters outlined several concerns that may 
limit the usefulness of ELP assessments in evaluating teacher and 
principal effectiveness, for example: Limitations of current testing 
instruments; difficulty in isolating the effects of a teacher or 
principal on an individual student's scores, especially when multiple 
teachers are involved in a student's instruction; a limited knowledge 
base about growth in English learners' acquisition of English and how 
to use measures of growth; and the complexities of using longitudinal 
data, especially for English learners who tend to have high mobility 
rates. One commenter noted that States could misinterpret the ELP 
Priority as requiring student learning on an ELP assessment to be the 
only measure of teacher effectiveness.
    A few commenters suggested revising the ELP Priority to require the 
use of multiple measures for evaluations of teacher and principal 
effectiveness, as opposed to using ELP assessments as the sole measure 
to evaluate teacher and principal effectiveness. One commenter 
suggested removing the provisions of the ELP Priority that refer to the 
use of ELP assessment data for informing evaluations of teacher and 
principal effectiveness. A few commenters stated that ELP assessments 
should be used for evaluations of teacher and principal effectiveness 
only after a research base has been established to support the use of 
the assessments for such purposes.
    Discussion: The ELP Priority does not require that States or other 
entities use data from ELP assessment systems developed under the 
priority as the single measure of teacher and principal effectiveness. 
The ELP Priority, in combination with the assessment design selection 
criterion, is intended to signal that ELP assessment systems should be 
developed so that, as appropriate, the data that they provide can be 
used as one of multiple measures for teacher and principal evaluation. 
We have revised the language in the ELP Priority and the assessment 
design selection criterion to more clearly reflect that intent.
    Changes: We have revised paragraph (c) of the ELP Priority to 
distinguish those circumstances in which ELP assessment data can be 
used as a single measure (paragraph (c)(3)) and those circumstances in 
which ELP assessment data can be one measure along with other 
appropriate measures (paragraph (c)(4)). We have included evaluations 
of principal and teacher effectiveness in paragraph (c)(4). We have 
also revised the assessment design selection criterion in paragraph 
(b)(6)(i) to indicate that data from the assessments developed under 
the EAG program should be used only as appropriate as one of multiple 
measures for determinations of individual principal and teacher 
effectiveness.
    Comment: Many commenters raised questions about the references in 
the ELP Priority to a ``common definition of `English learner'.'' One 
commenter expressed support for the general approach of requiring a 
common definition, noting that a common definition would ensure that 
the data States provide on the total number of English learners being 
served would be more accurate and consistent across the nation, thereby 
allowing parents, educators, and other stakeholders to make comparisons 
across States and the nation. Multiple commenters requested that the 
Department clarify the meaning of the term ``common'' and had diverging 
views on whether ``common'' should be defined as ``identical'' or 
``similar'' (e.g., comparable and consistent). Commenters also asked 
for clarification as to whether the reference to a ``common 
definition'' applies to home language surveys, screening instruments, 
procedures for identifying and classifying English learners, 
definitions of language proficiency levels, and criteria for 
determining the English proficiency of students and student exit from 
English learner status.
    Several commenters provided specific suggestions for how the term 
``common'' should be interpreted when used in the phrase ``common 
definition of English learner.'' One commenter recommended that the 
common definition of English learner, including classification and exit 
criteria, be based solely on the ELP assessment system and not on 
academic performance. The commenter noted that excluding academic 
performance measures would avoid problems of construct validity and 
avoid confusing the ``English learner'' classification with non-
language-related criteria. Another commenter recommended that an 
assessment of students' proficiency in their first language be 
considered in the common definition of English learner. Another 
commenter asked how subgroups of English learners would fit within a 
common definition and how data on these subgroups would be collected, 
disaggregated, reported, and used.
    One commenter stated that requiring multiple States to change their 
definition of English learner to a common definition would be an 
unreasonable Federal administrative requirement that goes beyond the 
intent of the ESEA. This commenter recommended removing paragraph 
(a)(2) from the ELP Priority, which calls for States to adopt a common 
definition of English learner.
    Discussion: The term ``common,'' as used in a ``common definition 
of English learner'' in paragraph (a)(2) of the ELP Priority, means an 
identical definition of English learner with respect to certain 
criteria, specifically: The diagnostic assessments and associated 
achievement standards used to classify students as English learners, as 
well as the summative assessments and associated achievement standards 
used to exit students from English learner status. This definition is 
the same for all subgroups of English learners, with the exception of 
English learners with the most significant cognitive disabilities who 
are eligible to participate in alternate assessments based on alternate 
academic achievement standards in accordance with 34 CFR 200.6(a)(2). 
Assessment of students' proficiency in their first language is beyond 
the scope of the ELP Priority.
    The use of a common definition of ``English learner'' and common 
criteria for exiting a student from English learner status will help 
ensure consistency in identifying English learners across the States in 
a consortium. However, the term ``common'' for purposes of the ELP 
Priority does not apply to other areas such as home language surveys, 
program placement and instruction for students, and the duration of 
program and support services for students. To clarify the scope of the 
ELP Priority, we have added language to paragraph (a)(2) to indicate 
that ``common'' means identical for purposes of the diagnostic 
assessments and associated achievement standards used to classify 
students as English learners as well as the summative assessments and 
associated achievement standards used to exit students from English 
learner status. To provide further clarity, we also substituted the 
word ``common'' for the word ``uniform'' in the definition of English 
learner.
    We agree with the commenter that a common definition of English 
learner should be based on the ELP assessments to be developed under 
the priority, as reflected in paragraph (c)(3) of the ELP Priority. We 
also agree that the priority should specifically reference subgroups of 
English learners and, therefore, are adding language to paragraph 
(c)(1) of the ELP Priority to require that the ELP assessment system 
provide data that can be disaggregated by key English learner 
subgroups.
    Because participation in a grant under the EAG program is voluntary 
and no

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entity is required to participate and adopt a common definition of 
English learner, we do not believe the requirement in the ELP Priority 
regarding a common definition of English learner represents an 
unreasonable Federal administrative requirement and therefore decline 
to remove this provision from the priority.
    Changes: We have revised paragraph (a)(2) of the ELP Priority to 
indicate that ``common'' means identical for purposes of the diagnostic 
and summative assessments and the associated achievement standards used 
to classify students as English learners and exit students from English 
learner status. We also substituted the word ``common'' for the word 
``uniform'' in the definition of English learner. We have revised 
paragraph (c)(1) of the ELP Priority to require that the ELP assessment 
system provide data that can be disaggregated by key English learner 
subgroups and to provide examples of those subgroups.
    Comment: Several commenters expressed concern that the proposed ELP 
Priority did not adequately address the development of ELP standards 
with which assessments developed under the priority must be aligned. 
The commenters recommended that the Department revise the priority to 
provide that the ELP standards be of high quality. One commenter also 
stated that the language of the proposed ELP Priority was unclear 
regarding whether EAG applicants would be required to develop the ELP 
standards to which assessments under the priority must be aligned as an 
activity under a grant. A few commenters specifically recommended that 
we require grantees to submit a detailed plan for developing and 
implementing the ELP standards on which they would base their ELP 
assessments. Another commenter recommended including in the ELP 
Priority a provision requiring the development of ELP standards or a 
requirement that all members of a consortium agree to the adoption and 
implementation of common ELP standards as a requirement for joining a 
consortium. These commenters stated that it would be impossible for a 
consortium to successfully develop common ELP assessments if each State 
in the consortium had its own ELP standards.
    One commenter noted that linguistic components of language embedded 
within ELP standards may be necessary, but are not sufficient, to 
measure the extent to which English learners can process and use 
language for specified purposes or situations. This commenter stated 
that it is the discourse level of language that carries the ``semantic 
load'' supportive of communication that is needed for college- and 
career-readiness.
    Another commenter stated that the ELP assessments developed under 
the ELP Priority should be aligned with ELP standards that correspond 
to content standards not only in English language arts but also in 
other subject areas.
    Another commenter noted the importance of effectively implementing 
ELP standards, stating that, in an aligned assessment system, standards 
are the reference point for designing proficiency measures, 
interpreting and communicating assessment results, and using assessment 
results to improve teaching and learning.
    Discussion: We agree that high-quality ELP standards and their 
implementation are a crucial foundation for the ELP assessment systems 
to be developed under the ELP Priority. Section 6112 of the ESEA, which 
authorizes the EAG program, does not authorize EAG funds to be used for 
developing standards. Therefore, the Department can make awards under 
the EAG program only to develop assessments. We are adding a program 
requirement clarifying this limitation.
    We expect that the assessments developed under the ELP Priority 
will be aligned with high-quality ELP standards, and are revising the 
ELP Priority to more specifically define the characteristics of high-
quality ELP standards to which the ELP assessments should align.
    Grants under the RTTA program, which the ELP Priority is designed 
to complement, are focused on assessments that are aligned with 
college- and career-ready standards in English language arts and 
mathematics that are held in common by a multiple States. Hence, we are 
providing that the assessments developed under the ELP Priority must be 
aligned with ELP standards that correspond to common, college- and 
career-ready standards in English language arts and mathematics. The 
ELP Priority does not preclude an applicant from proposing to align the 
ELP assessments with ELP standards that include the academic language 
necessary for college- and career-readiness in subjects in addition to 
English language arts and mathematics. We also expect that rigorous ELP 
standards that correspond to a set of college- and career-ready 
standards in English language arts and mathematics that are held in 
common by multiple States and that are developed with broad stakeholder 
involvement will attend not only to the linguistic components of 
language but also to the discourse level of language.
    Changes: We have revised paragraph (a)(5) of the ELP Priority to 
more specifically define the characteristics of the ELP standards to 
which the ELP assessments developed under the program must align. 
Specifically, we have indicated that those standards must correspond to 
a common set of college- and career-ready standards in English language 
arts and mathematics, and be rigorous, developed with broad stakeholder 
involvement, and vetted with experts and practitioners. The standards 
also must be standards for which external evaluations have documented 
rigor and correspondence to a common set of college- and career-ready 
standards in English language arts and mathematics.
    We removed the reference to States adopting or utilizing any 
standards developed under a proposed project from paragraph (d) of the 
Collaborative Efforts Priority in order to clarify that EAG program 
funds may not be used to develop standards. We also have added a new 
requirement (e), which requires grantees to ensure that EAG funds are 
not used to support the development of standards, such as under the ELP 
Priority or any other priority. The subsequent requirements have been 
re-numbered accordingly.
    Comment: Two commenters expressed support for our approach to ELP 
assessments for students with the most significant cognitive 
disabilities. One commenter suggested removing paragraph (e) of the ELP 
Priority, which requires applicants to include in their applications 
the strategies the applicant State or, if the applicant is part of a 
consortium, all States in the consortium, would use to assess the 
English proficiency of English learners with the most significant 
cognitive disabilities. The commenter suggested replacing this 
provision with a requirement that grantees under the EAG program 
coordinate with existing grantees funded under the Individuals with 
Disabilities Education Act (IDEA), including the General Supervision 
Enhancement Grant (GSEG) program, to address the needs of English 
learners with the most significant cognitive disabilities. One 
commenter suggested that we require applicants to indicate how they 
would coordinate work under an EAG grant awarded under the ELP Priority 
with grants awarded under the GSEG program.
    Discussion: Recent awards under the GSEG program are supporting the 
development of alternate assessments based on alternate achievement 
standards that measure student knowledge and skills against academic 
content standards in English language

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arts and mathematics held in common by multiple States; these grants 
are not supporting the development of alternate ELP assessments for 
students with the most significant cognitive disabilities. We 
acknowledge the importance of developing alternate ELP assessments for 
English learners with the most significant cognitive disabilities but, 
due to limited resources, are not including them in the ELP Priority.
    There will be limited overlap in the focus of the projects awarded 
under the ELP Priority and the projects awarded under the GSEG program 
because the EAG grants will not be supporting the development of 
alternate assessments and because the GSEG awards, which focus only on 
alternate assessments, are not supporting the development of ELP 
assessments. Accordingly, we decline to require that EAG grantees 
coordinate with GSEG grantees.
    To clarify the reference to English learners with the most 
significant cognitive disabilities who are eligible to participate in 
alternate assessments based on alternate academic achievement 
standards, we added the relevant regulatory citation to paragraphs 
(a)(10) and (a)(11) of the ELP Priority.
    Changes: We have added the relevant regulatory citation, 34 CFR 
200.6(a)(2), to paragraphs (a)(10) and (a)(11) of the ELP Priority.
    Comment: One commenter recommended that we consider adding a 
priority to support the development of assessments to measure 
proficiency in a second language other than English for States that 
support bilingual education and bi-literacy.
    Discussion: We recognize that measuring student proficiency in a 
second language other than English can provide useful data to educators 
of such students. States already have the flexibility to develop such 
assessments, which under certain circumstances may be supported by ESEA 
funds in accordance with section 6111 of the ESEA.
    We decline to make the suggested change because we believe that 
developing new ELP assessments is a more pressing need than developing 
assessments that measure student proficiency in a second language other 
than English. The Department has provided funding under the RTTA 
program to consortia that together include 44 States and the District 
of Columbia to develop new assessment systems that measure student 
knowledge and skills against a common set of college- and career-ready 
standards in English language arts and mathematics. ELP assessments 
corresponding to such common standards will be needed when the RTTA 
assessments are implemented, and such assessments have not been 
developed.
    Changes: None.
    Comment: One commenter noted that addressing issues such as the 
assessment of students whose education has been interrupted might be 
more appropriately addressed by the GSEG program.
    Discussion: The ELP Priority requires that ELP assessment systems 
developed under the priority accurately assess English learners with 
limited or no formal education, including students whose education has 
been interrupted. Data on the English proficiency of these students can 
support efforts to improve their instruction. The GSEG program focuses 
on assessment for students with disabilities, who may or may not be 
English learners. We decline to make a change in response to this 
comment, because it is beyond the scope of the program to make changes 
to other programs, such as the GSEG program, and because the GSEG 
program focuses on assessments for students with disabilities, only 
some of whom are English learners and not necessarily English learners 
with interrupted education.
    Changes: None.

Priority 2--Collaborative Efforts Among States

    Comment: We received a variety of comments on the paragraph in the 
Collaborative Efforts Priority that requires a consortium to include a 
minimum of 15 States. One commenter stated that providing grants to 
sizeable consortia of States would maximize the impact of program 
funds. Another commenter suggested that the Department establish an 
eligibility restriction under which only consortia would be eligible to 
apply and require that a consortium include a minimum of 15 States that 
represent at least 30% of the nation's English learners. Another 
commenter expressed concern that the approach to consortia may result 
in grants that do not include all States, including some States with 
sizable English learner populations. Two additional commenters 
recommended removing the proposed minimum number of States in a 
consortium, suggesting that a minimum of 15 States would impose an 
unfair obstacle to States and that improvement in assessment quality 
will be achieved through competition in the marketplace.
    Discussion: States have indicated to the Department their interest 
in working together in consortia to develop assessments aligned with 
common standards. Because of the complexity of developing and 
implementing assessments and assessment-related instruments, 
collaborative efforts between and among States can yield approaches 
that build on each State's expertise and experience, as well as 
approaches that generate substantial efficiencies in development, 
administration, costs, and uses of results. We believe that larger 
consortia will make more effective use of EAG funds by drawing on the 
expertise and experience of more States, increasing the potential 
impact across States, and increasing the degree to which common 
assessment tools are available to States nationwide. However, we do not 
want to limit States' flexibility in forming consortia by adding 
requirements in the Collaborative Efforts Priority, such as a 
requirement that a certain percentage of English learners be 
represented by the population of consortium member States. We do not 
have the authority to require all States to participate, and we decline 
to prohibit individual States from applying for an award under the EAG 
program; as a result, we decline to make the suggested changes in these 
areas.
    Changes: None.
    Comment: While expressing general support for the Collaborative 
Efforts Priority, one commenter expressed concern regarding the 
requirement to have States sign a binding memorandum of understanding 
to use assessments not yet developed. The commenter suggested that 
requiring a strong and exclusive letter of support for one consortium 
proposal would be a more reasonable requirement.
    Discussion: Under Department regulations, all members of a 
consortium applying for a grant must enter into an agreement that (1) 
details the activities that each member of the consortium plans to 
perform; and (2) binds each member of the consortium to every statement 
and assurance made by the applicant in its application. (34 CFR 
75.128). In response to the commenters' concerns that States may decide 
to leave a consortium after receiving the grant, we are revising 
paragraph (c)(3) of the Collaborative Efforts Priority to require 
applicants to include in their applications protocols for member States 
to leave a consortium and for new member States to join a consortium. A 
consortium of States applying for a grant would have flexibility in 
determining the roles that member States may play. In addition, a State 
could enter or leave a consortium according to the protocols the 
consortium has established for this purpose. In light of the 
Department's

[[Page 21991]]

regulations and the changes being made to provide flexibility to 
States, we decline to require a strong and exclusive letter of support 
rather than a binding memorandum of understanding.
    Changes: We have revised paragraph (c)(3) of the Collaborative 
Efforts Priority to require that applications from consortia include 
protocols to allow States to leave the consortium and for new member 
States to join the consortium. We also revised paragraph (d) of the 
Collaborative Efforts Priority to indicate that, to remain in the 
consortium, a State must adopt or use any instrument, including to the 
extent applicable, assessments, developed under the proposed project no 
later than the end of the project period.

Selection Criteria

    Comment: One commenter, expressing support for the selection 
criteria, observed that the criteria include all the essential 
principles needed to govern the development and implementation of high-
quality, rigorous, research-based assessment practices.
    Discussion: We agree that the selection criteria should address the 
key aspects of developing high-quality assessments and that the 
selection criteria, as designed, address those key aspects.
    Changes: None.
    Comment: One commenter suggested revising paragraph (5) of the 
assessment design selection criterion, which specifies the types of 
data that must be provided by the assessments. The commenter suggested 
adding the following categories of data: types of English learner 
program services, length of time in the English learner program, and 
level of English proficiency.
    Discussion: Students' levels of English proficiency are already 
included among the data the ELP assessments developed under the ELP 
Priority must provide. However, because the selection criteria in this 
notice may be used in future competitions, which may or may not include 
the ELP Priority, we decline to revise the selection criteria in a 
manner that relates specifically to the ELP Priority. For this same 
reason, we decline to include in the selection criteria the other types 
of data the commenter suggested (i.e., English learner program 
services, length of time in the English learner program). In addition, 
data regarding services provided by English learner programs and the 
length of time students are in such programs are data that help assess 
program effectiveness; they are not data that ELP assessments provide.
    Changes: None.
    Comment: One commenter suggested that we revise paragraph (b)(10) 
of the assessment design selection criterion, which addresses methods 
of scoring, to allow for self-scoring of student performance on 
assessments in order to shorten the turnaround time for scoring.
    Discussion: The selection criteria do not specify the scoring 
methods that grantees must use. Applicants may propose to use a self-
scoring approach, as the commenter suggests, so long as the approach is 
consistent with the technical quality requirements for the assessments.
    Changes: None.
    Comment: One commenter recommended that paragraph (11) of the 
assessment design selection criterion, which addresses reports to be 
produced based on the assessments, be revised to include the provision 
of reports in a language and format that parents can understand.
    Discussion: We agree with the commenter that reports of assessment 
data should be provided to parents in an understandable and uniform 
format and, to the extent practicable, in a language that parents can 
understand, and have revised this paragraph accordingly.
    Changes: We have revised paragraph (11) of the assessment design 
selection criterion to provide for the consideration of the extent to 
which, reports produced based on the assessments will be presented in 
an understandable and uniform format, and to the extent practicable, in 
a language that parents can understand.
    Comment: One commenter noted that paragraph (1)(ii) of the proposed 
assessment development plan selection criterion, which described the 
types of personnel to be involved in each assessment development phase 
and provided some examples of such personnel, did not include 
references to advocates for English learners or parents of English 
learners. The commenter suggested that the Department revise this 
paragraph to include such stakeholders in the examples provided.
    Discussion: We agree that the list of examples should include a 
reference to other key stakeholders and have revised the selection 
criterion accordingly. However, because the selection criteria may be 
used in future competitions, which may or may not include the ELP 
Priority, we decline to revise the selection criteria in a manner that 
relates specifically to the ELP Priority, such as listing stakeholder 
groups specific to English learners.
    Changes: We have revised paragraph (1)(ii) of the assessment 
development plan selection criterion to include ``other key 
stakeholders'' in the list of examples provided.
    Comment: One commenter expressed support for the Department's 
reference to the use of representative sampling for field testing in 
paragraph (5) of the assessment development plan selection criterion. 
This commenter suggested that we revise this paragraph to specify 
certain subgroups of English learners that may be considered in a 
representative sample.
    Discussion: We agree with the suggestion that the student 
populations that should be considered for representative sampling 
include high- and low-performing students, different types of English 
learners, and students with disabilities, and that it would be helpful 
for applicants to have examples of subgroups of English learners that 
may be considered. We have revised this paragraph to provide examples 
of the subgroups of English learners that may be considered in a 
representative sample.
    Changes: We have revised paragraph (5) of the assessment 
development plan selection criterion to include the following examples 
of subgroups of English learners that may be considered in a 
representative sample: recently arrived English learners, former 
English learners, migratory English learners, and English learners with 
disabilities.
    Comment: One commenter expressed support for the emphasis on 
research and evaluation in the selection criteria.
    Discussion: The Department agrees that the selection criteria 
should include a research and evaluation component and believes that 
the selection criteria, as designed, adequately consider whether an 
applicant's research and evaluation plan will ensure that the 
assessments developed are valid, reliable, and fair for their intended 
purposes.
    Changes: None.
    Comment: One commenter, while expressing support for the emphasis 
on professional capacity and outreach in the selection criteria, stated 
that mainstream and content-area teachers, as well as English-as-a-
second language and bilingual program educators and administrators, 
should be included in professional capacity and outreach plans. The 
commenter also suggested that such plans should address additional 
factors relating to ELP assessments, including the definition of 
English learners, language proficiency levels, exit criteria for 
programs and services, and professional development on the use of the 
assessments and assessment results to inform and improve instruction.

[[Page 21992]]

    Discussion: The activities suggested by the commenter are allowable 
under the requirements for this program. However, because the selection 
criteria may be used in future competitions that may or may not involve 
the ELP Priority, we decline to make the recommended changes to the 
selection criterion.
    Changes: None.

Requirements

    Comment: One commenter recommended that the requirement related to 
evaluation be revised to mandate that evidence from evaluation 
activities be posted on a specific Web site used by professionals who 
specialize in issues related to English learners in order to improve 
dissemination of findings.
    Discussion: The EAG requirements do not preclude grantees from 
posting information related to grant activities on Web sites (provided 
that the appropriate disclaimers are included). However, we believe 
that specifying the manner in which grantees make information available 
would be unnecessarily prescriptive. Therefore, we decline to make the 
suggested change in order to provide grantees with flexibility in how 
they meet the requirement to make information related to grant 
activities available to the public.
    Changes: None.
    Comment: A couple of commenters expressed concern regarding the 
requirement that grantees develop a strategy to make student-level data 
that result from any assessments or other assessment-related 
instruments developed under the ELP Priority available on an ongoing 
basis for research, including for prospective linking, validity, and 
program improvement studies. One commenter recommended that the 
requirements affirmatively address the applicable privacy safeguards 
under the ESEA and the Family Educational Rights and Privacy Act 
(FERPA) to ensure that disaggregated data used to report achievement 
results for subgroups cannot be traced back to an identifiable student. 
Another commenter suggested removing the requirement due to concerns 
about privacy issues and a concern that limited funds for the grants 
might be diverted to research or other entities that have separate 
access to governmental and non-governmental funding sources. The 
commenter also stated that the proposed requirements included all 
necessary considerations for validity, reliability, and fairness, 
thereby making the need for further research duplicative and 
superfluous.
    Discussion: Eligible applicants awarded a grant under the EAG 
program must comply with FERPA and 34 CFR Part 99, as well as State and 
local requirements regarding privacy; we are adding a footnote to the 
notice reminding applicants that they must comply with these 
requirements. With regard to the concern that limited funds for the 
grants might be diverted to research, we note that the requirement 
states that grant recipients must make data available for further 
research, and that grant recipients may only use grant funds on 
research and evaluation activities that fall within the scope of the 
activities proposed in their approved applications. In order to allow 
for additional research that may prove useful, we decline to remove the 
requirement.
    Changes: We have added a footnote to requirement (c) (making 
student-level data available for further research) reminding applicants 
that they must comply with FERPA and State and local privacy 
requirements should they receive an award under this program.
    Comment: Two commenters expressed concern regarding the requirement 
that grantees, unless otherwise protected by law or agreement as 
proprietary information, make any assessment content and other 
assessment-related instruments developed with EAG funds freely 
available to States, technology platform providers, and others that 
request it for purposes of administering assessments, provided that 
those parties receiving assessment content comply with consortium or 
State requirements for test or item security. One commenter reiterated 
that all instruments developed with EAG funding must be open-source and 
available to any State requesting the use of the tools and instruments. 
The other commenter requested that we clarify that assessments would be 
freely available to States and others, including local educational 
agencies. This commenter recommended removing the phrase ``unless 
otherwise protected by law or agreement as proprietary information'' 
from the requirement, and adding a reference to making the information 
available to local educational agencies.
    Discussion: We cannot make a change to protections of proprietary 
information guaranteed by existing laws. In addition, for work funded 
by the EAG program and other Department-funded discretionary grant 
programs, the Department reserves a royalty-free, nonexclusive, and 
irrevocable license to reproduce, publish, or otherwise use, and to 
authorize others to use, for Federal Government purposes: The copyright 
in any work developed under a grant from the EAG program; and any 
rights of copyright to which a grantee or a contractor purchases 
ownership with grant support. (34 CFR 80.34). At this time we do not 
intend to exercise this license with respect to any products produced 
with EAG funds. If a grantee develops a product but fails to make it 
reasonably available to interested entities, however, we may exercise 
our license if doing so would further the interests of the Federal 
Government. We believe the requirement as originally stated, coupled 
with our license with respect to any products produced with EAG funds, 
will serve to make adequately available products produced with EAG 
funds. Additionally, we note that this requirement is consistent with 
requirements of the RTTA program (see program requirement 6 ``Making 
Work Available,'' in the RTTA program notice inviting applications, 75 
FR 18175 (April 9, 2010)). As a result, we decline to make the 
suggested changes.
    Changes: None.

Definitions

    Comment: With regard to the definition of a common set of college- 
and career-ready standards, one commenter suggested revising the 
definition to specify what constitutes a ``significant number of 
States.''
    Discussion: In using the term significant, we intended to indicate 
multiple States rather than to refer to a specific number of States. We 
agree that the ELP Priority should be more specific and have replaced 
the phrase ``significant number of'' with the term ``multiple.''
    Changes: In the definition of common set of college- and career-
ready standards, we have replaced the phrase ``significant number of'' 
with the term ``multiple.''

Funding

    Comment: Some commenters expressed concern about the amount of 
funds anticipated to be available for awards under a competition for 
EAG funds involving the ELP Priority. Two commenters stated that the 
information they had from interviews and press reports suggested that 
funding for the development of ELP assessment systems under the ELP 
Priority would be limited, especially when compared to funds available 
for recent Department grants awarded under the RTTA and GSEG programs. 
Another commenter expressed concern that the amount of funding that 
would be available for an EAG competition involving the ELP Priority 
would be too small, especially in comparison with the RTTA and

[[Page 21993]]

GSEG programs that the new priorities for the EAG program are designed 
to complement. Some commenters recommended that the Department consider 
making additional funds available to support the development of ELP 
assessment systems under the EAG program. Another commenter noted that, 
based on its experience in developing assessments, the cost of 
accomplishing the scope and scale of work proposed in the notice of 
proposed priorities, requirements, definitions, and selection criteria 
would require more than the $10.7 million appropriated for the EAG in 
FY 2010 to be awarded in 2011. The commenter encouraged the Department 
to provide funding for grants under the EAG program comparable to the 
amounts awarded under the RTTA and GSEG programs. Another commenter 
stated that $10.7 million would be inadequate to address the needs of 
English learners through the EAG program. Another commenter recommended 
that the Department provide awards of $30 million, and suggested 
decreasing the estimated number of awards if necessary to fund grantees 
at this amount. None of the commenters outlined specific anticipated 
costs for the various components of developing an ELP assessment 
system, and only one commenter suggested a specific amount for awards.
    Discussion: We cannot alter the amount of funding that Congress 
appropriated for the EAG program in the FY 2010 budget. In developing 
our estimates for the average size and range of awards included in the 
FY 2011 notice inviting applications for new awards for FY 2010 funds, 
published elsewhere in this issue of the Federal Register, we 
considered the costs of efforts to develop ELP assessment systems that 
the Department has previously funded, the cost estimates for activities 
under programs with similar goals, and other information available for 
estimating the costs of developing assessment systems.
    Changes: None.
    Final Priorities:
    English Language Proficiency Assessment System. The Department 
establishes a priority under the EAG program for an English language 
proficiency assessment system. To meet this priority, an applicant must 
propose a comprehensive plan to develop an English language proficiency 
assessment system that is valid, reliable, and fair for its intended 
purpose. Such a plan must include the following features:
    (a) Design. The assessment system must--
    (1) Be designed for implementation in multiple States;
    (2) Be based on a common definition of English learner adopted by 
the applicant State and, if the applicant applies as part of a 
consortium, adopted and held in common by all States in the consortium, 
where common with respect to the definition of ``English learner'' 
means identical for purposes of the diagnostic (e.g., screener or 
placement) assessments and associated achievement standards used to 
classify students as English learners as well as the summative 
assessments and associated achievement standards used to exit students 
from English learner status;
    (3) At a minimum, include diagnostic (e.g., screener or placement) 
and summative assessments;
    (4) Measure students' English proficiency against a set of English 
language proficiency standards held by the applicant State and, if the 
applicant applies as part of a consortium, held in common by all States 
in the consortium;
    (5) Measure students' English proficiency against a set of English 
language proficiency standards that correspond to a common set of 
college- and career-ready standards (as defined in this notice) in 
English language arts and mathematics, are rigorous, are developed with 
broad stakeholder involvement, are vetted with experts and 
practitioners, and for which external evaluations have documented rigor 
and correspondence with a common set of college- and career-ready 
standards in English language arts and mathematics;
    (6) Cover the full range of the English language proficiency 
standards across the four language domains of reading, writing, 
speaking, and listening, as required by section 3113(b)(2) of the ESEA;
    (7) Ensure that the measures of students' English proficiency 
consider the students' control over the linguistic components of 
language (e.g., phonology, syntax, morphology);
    (8) Produce results that indicate whether individual students have 
attained the English proficiency necessary to participate fully in 
academic instruction in English and meet or exceed college- and career-
ready standards;
    (9) Provide at least an annual measure of English proficiency and 
student progress in learning English for English learners in 
kindergarten through grade 12 in each of the four language domains of 
reading, writing, speaking, and listening;
    (10) Assess all English learners, including English learners who 
are also students with disabilities and students with limited or no 
formal education, except for English learners with the most significant 
cognitive disabilities who are eligible to participate in alternate 
assessments based on alternate academic achievement standards in 
accordance with 34 CFR 200.6(a)(2); and
    (11) Be accessible to all English learners, including by providing 
appropriate accommodations for English learners with disabilities, 
except for English learners with the most significant cognitive 
disabilities who are eligible to participate in alternate assessments 
based on alternate academic achievement standards in accordance with 34 
CFR 200.6(a)(2).
    (b) Technical quality. The assessment system must measure students' 
English proficiency in ways that--
    (1) Are consistent with nationally recognized professional and 
technical standards; and
    (2) As appropriate, elicit complex student demonstrations of 
comprehension and production of academic English (e.g., performance 
tasks, selected responses, brief or extended constructed responses).
    (c) Data. The assessment system must produce data that--
    (1) Include student attainment of English proficiency and student 
progress in learning English (including data disaggregated by English 
learner subgroups such as English learners by years in a language 
instruction educational program; English learners whose formal 
education has been interrupted; students who were formerly English 
learners by years out of the language instruction educational program; 
English learners by level of English proficiency, such as those who 
initially scored proficient on the English language proficiency 
assessment; English learners by disability status; and English learners 
by native language);
    (2) Provide a valid and reliable measure of students' abilities in 
each of the four language domains (reading, writing, speaking, and 
listening) and a comprehensive English proficiency score based on all 
four domains, with each language domain score making a significant 
contribution to the comprehensive ELP score, at each proficiency level; 
and
    (3) Can be used for the--
    (i) Identification of students as English learners;
    (ii) Decisions about whether a student should exit from English 
language instruction educational programs;
    (iii) Determinations of school, local educational agency, and State 
effectiveness for the purposes of

[[Page 21994]]

accountability under Title I and Title III of the ESEA;
    (4) Can be used, as appropriate, as one of multiple measures, to 
inform--
    (i) Evaluations of individual principals and teachers in order to 
determine their effectiveness;
    (ii) Determinations of principal and teacher professional 
development and support needs; and
    (iii) Strategies to improve teaching, learning, and language 
instruction education programs.
    (d) Compatibility. The assessment system must use compatible 
approaches to technology, assessment administration, scoring, 
reporting, and other factors that facilitate the coherent inclusion of 
the assessments within States' student assessment systems.
    (e) Students with the most significant cognitive disabilities. The 
comprehensive plan to develop an English language proficiency 
assessment system must include the strategies the applicant State and, 
if the applicant is part of a consortium, all States in the consortium, 
plans to use to assess the English proficiency of English learners with 
the most significant cognitive disabilities who are eligible to 
participate in alternate assessments based on alternate academic 
achievement standards in accordance with 34 CFR 200.6(a)(2) in lieu of 
including those students in the operational administration of the 
assessments developed for other English learners under a grant from 
this competition.
    Collaborative Efforts Among States. The Department establishes a 
priority under the EAG program for collaborative efforts among States. 
To meet this priority, an applicant must--
    (a) Include a minimum of 15 States in the consortium;
    (b) Identify in its application a proposed project management 
partner and provide an assurance that the proposed project management 
partner is not partnered with any other eligible applicant applying for 
an award under this competition; \1\
---------------------------------------------------------------------------

    \1\ In selecting a proposed project management partner, an 
eligible applicant must comply with the requirements for procurement 
in 34 CFR 80.36.
---------------------------------------------------------------------------

    (c) Provide a description of the consortium's structure and 
operation. The description must include--
    (1) The organizational structure of the consortium (e.g., 
differentiated roles that a member State may hold);
    (2) The consortium's method and process (e.g., consensus, majority) 
for making different types of decisions (e.g., policy, operational);
    (3) The protocols by which the consortium will operate, including 
protocols for member States to change roles in the consortium, for 
member States to leave the consortium, and for new member States to 
join the consortium;
    (4) The consortium's plan, including the process and timeline, for 
setting key policies and definitions for implementing the proposed 
project, including, for any assessments developed through a project 
funded by this grant, the common set of standards upon which to base 
the assessments, a common set of performance-level descriptors, a 
common set of achievement standards, common assessment administration 
procedures, common item-release and test-security policies, and a 
common set of policies and procedures for accommodations and student 
participation; and
    (5) The consortium's plan for managing grant funds received under 
this competition; and
    (d) Provide a memorandum of understanding or other binding 
agreement executed by each State in the consortium that includes an 
assurance that, to remain in the consortium, the State will adopt or 
use any instrument, including to the extent applicable, assessments, 
developed under the proposed project no later than the end of the 
project period.
    Types of Priorities:
    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).
    Final Requirements:
    The Department establishes the following requirements for the 
Enhanced Assessment Grants program. We may apply one or more of these 
requirements in any year in which a competition for program funds is 
held. An eligible applicant awarded a grant under this program must:
    (a) Evaluate the validity, reliability, and fairness of any 
assessmen