Dr. Jacquelyn C. Jackson
Acting Director
Student Achievement and School Accountability Programs
Office of Elementary and Secondary Education
U.S. Department of Education
400 Maryland Avenue, SW, Room 3W230
Washington, DC 20202-6132
Re: Proposed Title I Regulations
Dear Dr. Jackson:
Attached are comments submitted by the Center for Law and Education on the proposed Title I regulations published in the Federal Register on August 6, 2002. While we have indicated our support for a number of positive provisions in the regulations, we are also very concerned about the large number of places where there are troubling departures from, or omissions of, the Act’s requirements in the proposed regulations.
We appreciate this opportunity to comment and would be pleased to discuss with the Department constructive approaches to these issues in implementing what is, we all recognize, an important and complex piece of legislation.
Sincerely,
Paul Weckstein, Co Director
Center for Law and Education
1875 Connecticut Avenue, NW, Suite 510
Washington, DC 20009
(202) 986-3000
COMMENTS ON PROPOSED TITLE I REGULATIONS (August 6, 2002)
submitted by:
CENTER FOR LAW AND EDUCATION
1875 Connecticut Avenue, NW, Suite 510
Washington, DC 20009
Contents (broad topics)
General Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
State Accountability System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Adequate Yearly Progress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Schoolwide Programs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
LEA and School Improvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Qualifications of Teachers and Paraprofessionals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Table of Contents (specific sections and issues)
§200.12 Single State accountability system
§200.12(b) – all public schools and LEAs.
1. Distinguishing alternative assessment of the same standards vs. alternate standards
2. Needed criteria concerning students with the “most significant cognitive disabilities”
§200.12(c)(5) – reporting percentage of students taking an alternate assessment
§200.13 Adequate yearly progress in general
§200.13(b)(4) – measure the progress of all public schools, LEAs, and the State
§200.13(b)(7) – application to each subgroup
§200.13(b)(7)(C) – definition of students with disabilities for purposes of AYP sub-group
§200.13(c)(2)(ii) and (iii) – limiting use of different achievement standards to 0.5%
§200.15(b) – changes in State assessment system or definition of AYP may not extend the timeline
§200.16(b)(2) – percentage of students proficient in the school at the 20th percentile
§200.16(b)(2)(iii) – adding schools until reaching 20% of enrollment
§200.16(c)(2) – separate starting points by grade span
§200.18 Annual measurable objectives
§200.19 Other academic indicators
§200.19(b) – State may include additional indicators
§200.19(e)(2) – use of the other indicators to identify additional schools
§200.20 Making adequate yearly progress
§200.20(c)(1)(i) – minimum of 95% in each group take the assessment – which students and assessments
§200.20(e) – students enrolled in the LEA for a full academic year, but in more than one school
§200.21 Adequate yearly progress of the State
§200.25 Schoolwide program purpose and eligibility
§200.25(b)(2) – measures of poverty for determining percentage of children from low-income families
§200.26 Development and evaluation of program plan
§200.26(a) – Development of plan
§200.26(c) – Comprehensive schoolwide program plan
§200.26(d) – Schoolwide program planning process
§200.26(a)(2)(ii) – process for plan development – focus on scientifically based research
§200.26(a)(3) – process for plan development – a process that occurs over time
§200.26(b) – Comprehensive needs assessment
§200.26(b)(3) – needs assessment – based on student information
§200.26(c)(3)(i) – Comprehensive schoolwide program plan – description
§200.26(c)(3)( ) – new paragraph needed
§200.26(d)(2) – schoolwide program planning process – involvement of parents
§200.26(d)(5) – review and revise the schoolwide plan
§200.26(e) – evaluation of implementation and results achieved by the schoolwide program
§200.26(e)(1) – evaluating implementation.
§200.26(e)(1) – frequency of evaluation.
§200.27 Schoolwide program implementation components
§200.27(a)(2) – effective methods and instructional strategies
§200.27(a)(2)(i) – improve teaching of reading/language arts, mathematics, and science
**§200.27(a)(2)(iii) – accelerated and enriched curriculum [missing]
§200.27(a)(2) – consistency with State and local improvement plans [missing]
§200.27(b) – Instruction by highly qualified teachers (structure of the provisions)
**§200.27(b)(1) – Instruction by highly qualified teachers (school-level flexibility)
§200.27(b)(2)(i) – high-quality and ongoing professional development
§200.27(c)(2) – Parental involvement – policy
§200.27(c)(2)(ii) – how the school will provide parents with individual assessment results
§200.27(d)(3) – information on which to base assistance to students experiencing difficulties
§200.28 Use of funds in a schoolwide program
§200.28(c)(3)(iii) – Availability of other Federal funds – IDEA
§200.31(d) – publicize and disseminate the results of the annual progress review
§200.32 Identification for school improvement
§200.32(d) and (e) – use of 2001-2002 assessment data in identifying schools in need of improvement
§200.50(d)(3) and (4) – use of 2001-2002 assessment data in identifying LEAs in need of improvement
§200.33 Identification for corrective action
§200.36 Communication with parents
§200.37 Notice of identification for improvement, corrective action, or restructuring
§200.37(b)(4) – explanation of parents’ option to transfer
§200.40(c)(1)(i) – technical assistance on problems in implementing parent involvement
§200.40(c)(2) – technical assistance on instructional issues
§200.41 School improvement plan
§200.41(a)(2) – consultation with parents – reference needed
§200.41(c)(2)(i) – strategies to strengthen instruction
§200.41(c)(3) – selection of policies and practices concerning core academic subjects
§200.41(c)(4) and (c)(4)(ii) – measurable goals
§200.41(c)(5) – spending at least 10% of its allocation on professional development
§200.41(c) – description of how the school will notify parents [missing]
§200.42(b)(ii)(A) – scientifically based research
§200.42(b)(4)(iv)(A) – possible corrective actions – appointing an outside expert(s)
§200.44(c) – Desegregation plans
§200.44(g)(1) – No eligible schools within an LEA – collaborative agreements with other LEAs
§200.44(i) – Choice option for students with disabilities under IDEA or Sec. 504
§200.45 Supplemental educational services
§200.45(4)(iii) – annual renewal of request for waiver of supplemental services provisions
§200.46 LEA responsibilities for supplemental educational services
§200.46(a)(1) – notice to parents concerning supplemental services
§200.47 SEA responsibilities for supplemental educational services
§200.47(a)(1)(i) — promoting participation by providers
§200.47(b)(1) – definition of “provider”
§200.47(b)(3) – limits on private providers’ excluding students with disabilities
§200.48 Funding for choice-related transportation and supplemental educational
§200.50 SEA review of LEA progress
§200.51(a)(2) – communicate with parents throughout the review of an LEA
§200.51(b) – publicize and disseminate the results of the review
§200.51(d)(1) – information about action taken
§200.52(a)(2) – improvement plan – consultation with parents – reference needed
§200.52(a)(3)(viii) – improvement plan – strategies to promote parent involvement
QUALIFICATIONS OF TEACHERS AND PARAPROFESSIONALS
§200.55 Qualifications of teachers
**§200.55(a)(2)(i) – teachers in targeted assistance schools
§200.55(b)(2) – teachers not teaching core academic subjects
§200.56 Definition of “highly qualified teachers”
§200.56(a)(1)(iii) – additional interpretation of the general requirement
§200.56(b)(2) – new elementary school teachers – State test
§200.56(b)(3) – new secondary school teachers – State test
§200.56(c) – Teachers not new to the profession
§200.57 Plans to increase teacher quality
§200.57(a) – State plan to increase teacher quality
§200.57(b) – Local plan to increase teacher quality
§200.58 Qualifications of paraprofessionals
**§200.58(a)(3)(i) – paraprofessionals in targeted assistance schools
1. Citations. Given the length and complexity of the statutory sections being addressed, and the significant reorganization and reordering of the Act’s various provisions in the regulations, it would be very helpful, in the statutory citations at the end of each regulatory section, to refer not to the general section of the Act (e.g., §1116), but rather to the specific subsections and paragraphs being addressed. Otherwise, it is often extraordinarily difficult to connect them, and the Department as a result will undoubtedly get questions that could be obviated (for example, when someone questions or opposes a regulation that is in fact mirroring a provision of the Act, but because of the reorganization, people have difficulty finding the relevant provision).
2. State Plans Requirements. There are a number of very important requirements in section 1111 of the Act for descriptions and assurances in the State plan that are directly relevant to the topics being regulated here (e.g., schoolwide programs and high-quality teachers), even though they do not appear in the sections specifically devoted to those topics. The connection should be made, both in the regulations and elsewhere, or these key provisions and obligations will be ignored.
To highlight some of the most important:
Under Section 1111(b)(8) of the Act, the State plan must describe:
“(A) how the State educational agency will assist each local educational agency
and school affected by the State plan to develop the capacity to comply with each of the
requirements of sections 1112(c)(1)(D) [LEA’s school improvement responsibilities],
1114(b) [schoolwide program components], and 1115(c) [targeted assistance school
program components] that is applicable to such agency or school;
“(B) how the State educational agency will assist each local educational agency and school affected by the State plan to provide additional educational assistance to individual students assessed as needing help to achieve the State's challenging academic achievement standards;
“(C) the specific steps the State educational agency will take to ensure that both schoolwide programs and targeted assistance schools provide instruction by highly qualified instructional staff as required by sections 1114(b)(1)(C) and 1115(c)(1)(E), including steps that the State educational agency will take to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers, and the measures that the State educational agency will use to evaluate and publicly report the progress of the State educational agency with respect to such steps;
“(D) an assurance that the State educational agency will assist local educational agencies in developing or identifying high-quality effective curricula aligned with State academic achievement standards and how the State educational agency will disseminate such curricula to each local educational agency and school within the State; and
“(E) such other factors the State educational agency determines appropriate to
provide students an opportunity to achieve the knowledge and skills described in the
challenging academic content standards adopted by the State.”
These descriptions and assurances set forth important parts of the State obligations in the areas being regulated, as well as other areas. They should therefore be included in the applicable parts of the regulations. Further they should receive the Department’s, and (through the Department) the States’, full attention in taking the steps necessary to ensure that we reach the goals set forth in this Act. This has not happened to date and needs to be remedied – for example (and of particular importance), to the extent that the required descriptions above were not included in the Department’s guidance and instructions to States on what they need to include in their consolidated State plans.
§200.12 Single State accountability system
§200.12(b) – all public schools and LEAs.
Sec. 1111(b)(2)(A) of the Act provides the State accountability system shall:
“(ii) be the same accountability system the State uses for all public elementary schools and secondary schools or all local educational agencies in the State, except that public elementary schools, secondary schools, and local educational agencies not participating under this part are not subject to the requirements of section 1116;”
The proposed regulation here rearranges the words of the two clauses in the Act in an effort to make the meaning clearer:
“(b)(1) Except as provided in paragraph (b)(2) of this section, each State must use the same accountability system for all public elementary and secondary schools and all LEAs in the State.
(2) The State may, but is not required to, subject schools and LEAs not participating under subpart A of this part to the requirements of section 1116 of the Act.”
We believe however, that the change will actually tend to create confusion among some readers that will can to improper application. Moving the “except that” from the second clause to the first seems more likely to result in a reading, not intended by the regulations or the Act, that the non-participating schools are not required to be part of the same accountability system and be making adequate yearly progress (as stated in (a)(1) of the regulations and the Act). Additionally, it would be helpful to give some indication of what the application of the accountability system, and the obligation to make AYP, to these non-participating schools and districts does mean.
§200.12(c)(4) – guidelines for using alternative assessments only for students with the most significant cognitive disabilities.
[ §200.13(b)(1) – same high standards of achievement for all public school students – exception for students with disabilities.
§200.13(c)(1) – process for lowering standards for students with the most significant disabilities who take an alternative assessment]
1. Distinguishing alternative assessment of the same standards vs. alternate standards
The proposed regulations at 200.12(c)(4)-(5) as well as 200.13 concerning use of alternate assessments are misleading to the extent that they fail to make absolutely clear that alternate assessments are recognized under Title I and IDEA as part of the State’s accountability system for ensuring full participation of students with disabilities, and are not limited to students with cognitive disabilities so severe that they cannot be assessed in relation to the standards for all students. There needs to be provision, for those students who need them, for valid alternate assessment of the same proficiencies applicable to all students. This type of alternate assessment then needs to be distinguished from the smaller number of instances, which need to be carefully limited and controlled, for assessing certain of the most severely cognitively disabled students in relation to different standards.
Alternate assessments encompass those instances where a student with disabilities cannot be validly assessed with the regular State assessments, even with accommodations, but can be meaningfully assessed in relation to the same standards, but with a different, alternative form of assessment – i.e., s/he is capable of demonstrating some level of performance in regard to some or all the knowledge and skills in the State’s content standards, but requires a different form of assessment to determine that level of performance. While many students with disabilities can be assessed with accommodations using the same assessments, of those who cannot, many can, and therefore must be, assessed with different instruments (for instance more performance-based or open-ended instruments) for validly measuring the same knowledge and skills – even if, in particular schools, such students are, initially at least, dispropo