| NASBE Comments on Proposed Title I Rules |
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June 23, 2008 Zollie Stevenson, Jr. U.S. Department of Education 400 Maryland Avenue, SW Room 3W230 Washington, DC 20202-6132 Dear Mr. Stevenson: On behalf of the National Association of State Boards of Education (NASBE,) representing the nation’s State and territorial boards of education, we want to provide you with our comments on the Notice of Proposed Rulemaking for regulations governing Title I of the Elementary and Secondary Education Act (ESEA), 34 CFR Part 200, Docket ID ED-2008-OESE-003, published in the April 23, 2008 edition of the Federal Register. Overall, while we appreciate the intent of the Secretary’s proposed regulatory changes to respond to the concerns of state and local policymakers implementing the No Child Left Behind Act, the timing of both the introduction and possible enactment date of these new rules are troubling. Had these regulatory reforms been unveiled several years ago, we would have welcomed many of them wholeheartedly. Coming as they do, however, more than six years after the enactment of the law, almost five years since the last Title I regulations were issued, and only months before this administration ends, presents a unique challenge to the state policymakers charged with implementing these changes. Moreover, such sweeping regulatory changes to fundamental aspects of the law—in particular redefining the graduation rate calculations and the school accountability formula—in the middle of the reauthorization process is without precedent in the history of federal education policymaking. Should these new rules take effect, the practical result will be that states will have to undertake further significant revisions to their accountability, data, and reporting systems for which they have already implemented major changes as a result of the No Child Left Behind Act. While making these modifications, reauthorization of the law will continue, advancing statutory requirements that may or may not align with these rule changes and will themselves eventually necessitate future issuance of new regulations that would supersede the current and pending rules. The fact that all of this could occur within the next eighteen to twenty-four months will only serve to put state accountability systems in flux, strain state department resources, frustrate state and local educators, and confuse the public. Indeed, the proposed regulations include estimates for the number of hours and cost for state and local to comply with the new rules. According to the department’s own calculations, states could be expected to expend 50,369 hours on the new rules, while at the local level the expense is estimated at nearly $21 million. Again, this investment in time and money may be worthwhile were these regulations to be in place for more than a year or two, but since they won’t be, we do not believe they warrant the fiscal or managerial expenses they entail. Thus, we suggest the most prudent course of action for the Secretary would be to withhold issuing final regulations and allow the new Congress and administration to vigorously pursue a reauthorization of President Bush’s signature domestic policy achievement with the diligent and unencumbered consideration it deserves. Nevertheless, we want to provide our comments on specific provisions within the proposed regulations. Section 200.2 State Responsibilities for Assessment—We appreciate the clarification to the current statute and regulations that states are allowed to use test questions of varying difficulty and multiple assessments to measure student academic achievement. Section 200.7 Disaggregation of Data—With regard to the justification in the proposed requirement that states explain how they determined their minimum subgroup “N-sizes” to ensure the maximum inclusion of students and statistical reliability, it was our understanding that the Secretary already evaluated state applications based on these criteria without the need for formal regulations. In addition, the rationale for this proposal as stated in the Federal Register is that “some have argued that the heterogeneous nature of student populations requires a relatively large minimum subgroup size in order to reflect accurately the achievement of students in AYP determinations. We believe, however, that in many cases minimum subgroup sizes are larger than is necessary to ensure statistically reliable information; the result is that a large number of subgroups (e.g., low-income students, students in some racial or ethnic subgroups, LEP students, and students with disabilities) are excluded from school-level accountability determinations.” Yet, the Department itself, in the form of testimony by Deputy Secretary Ray Simon before the House Education Committee on June 13, 2006, provided the following justification for keeping the current regulations regarding the establishment of the N number and the process for submitting and having approved the minimum subgroup size: “The No Child Left Behind Act allows states to set a minimum number in defining a student subgroup, called an ‘n-size,’ Congress recognized the need to ensure accuracy and avoid distortions when, to quote the law, ‘the number of students in a category is insufficient to yield statistically reliable information.’ “This numerical floor varies from state to state. Most states use an n-size of about 30-40 students per school. Taken together, about 25 million more students are currently accounted for—a huge increase over pre-NCLB levels. “But the question naturally arises: due to n-sizes, are there some students being left behind? The answer is no. Even when, say, only four Hispanic students are enrolled in a school, those students' test scores are reviewed individually by teachers and parents. Their scores are also counted toward the school district's performance in that subgroup. Finally, their scores may, depending on the student, be counted in a second, third or fourth subgroup—such as Limited English Proficient or economically disadvantaged—that exceeds the n-size minimum. “Thus, the law has built-in redundancies to enable us to get as close to 100 percent accountability as we possibly can.” We could not have said it better ourselves. Section 200.11 Participation in NAEP—We are proud to assist the National Assessment Governing Board (NAGB) in disseminating the 4th and 8th grade reading and math NAEP results by including them on state report cards. However, because current federal regulations require states to “promptly provide the results of its assessments no later than before the beginning of the next school year to LEAs, schools, and teachers” (section 200.5), this new requirement could have significant implications on compliance with this existing requirement. We feel it is critical that these regulations specifically establish a specific date by which NAEP results will be provided to states and/or the public. Indeed, given the stress within the testing industry due to overwhelming demand, it is entirely possible that NAEP results could be delayed to the point where states find themselves in the untenable position of having to choose between publishing their report cards without their NAEP data before the beginning of the school year (and being non-compliant with a federal regulation on the one hand) or delaying the release of their report to be able to include the NAEP data but until after the beginning of the next school year (and being non-compliant with a separate federal regulation on the other hand). Thus, it is imperative that these regulations indemnify states from sanctions or other punitive measures related to compliance with these regulations as they pertain to the inclusion of NAEP results and the deadlines for publishing their report cards. Admittedly, the odds of this occurring are minor, but they are nevertheless real. Indeed, if the Department believes the chances of such a scenario are remote, then they should have no problem in providing the indemnification. Finally, it bears mentioning that Section 1111 of the statute specifically lists the information states are required to include on their report cards. NAEP data is conspicuously absent from this statutory requirement and even from the optional information the statute suggests the state might want to consider for inclusion in the report card. Even the section requiring states to participate in the NAEP exams from which the scores are gleaned does not stipulate that the results be included on state report cards. Section 200.19 Graduation rate definition—In general, we are supportive of efforts to establish a nationally uniform graduation rate definition such as this proposed regulation and the policy upon which it is based, the National Governors’ Association compact. However, in the context of the No Child Left Behind Act, we have concerns about the Secretary exceeding her regulatory authority in this area. (On a minor point, we would clarify that although the proposed regulations cite that “all 50 governors” agreed to the graduation rate developed by NGA in 2005 (and twelve national education organizations, including NASBE), at present only 45 governors have agreed to the compact. In other words, ten percent of the states’ chief executives have not endorsed the graduation rate definition proposed by the Department within their own membership organization.) As you know, NCLB includes the graduation rate definition in the statute itself. Section 1111(b)(2)(C)(vi) states, “graduation rates for public secondary school students (defined as the percentage of students who graduate from secondary school with a regular diploma in the standard number of years).” Thus, the addition of “adjusted cohort” or reliance on averaged freshman graduation rate (AFGR) in the proposed regulations fundamentally alter the statutory definition of graduation rate. On the related issue of disaggregating student graduation data, we applaud the larger principle which the Secretary is advancing. This information would be invaluable in highlighting the dropout crisis and focusing attention on the needs of particular subgroups of students. But along the same lines as in the immediately preceding comment, we have concerns that the Secretary is exceeding her regulatory authority in proposing rules that substantially and materially change the NCLB statute. Requiring the inclusion of disaggregated graduation data in adequate yearly progress (AYP) calculations at the school, local, and state levels is a dramatic and far-reaching change to NCLB’s accountability mandates that has no basis in the statute. On a statistical and mathematical basis alone, this change would dramatically increase the number of schools identified as in need of improvement because of the eight brand new student achievement data goals that each secondary school would have to meet and where missing just one target would trigger NCLB’s accountability interventions. Without any concomitant increase in federal resources or technical assistance to accompany this policy change, it appears that this proposal is meant to be entirely punitive and not a serious federal effort to help improve these soon-to-be-branded failing schools. Perhaps more importantly, the Department’s requirement that states disaggregate student graduation data and use it in AYP determinations appears to contradict Section 1111(b)(2)(C)(vi) and (vii), which grants the states’ the authority to determine the required one academic indicator above and beyond the overall graduation rate and specifically allows the states “discretion” to determine other academic indicators “measured separately for each group” such as disaggregated graduation rates or “additional State or locally administered assessments, decreases in grade-to-grade retention rates, attendance rates, and changes in the percentages of students completing gifted and talented, advanced placement, and college preparatory courses.” Section 200.22 National Technical Advisory Council—We have some reservations about the imprecise nature of the formation and mission of the National Technical Advisory Council and feel it is important for the regulations to more fully elaborate on the specific duties, terms, and meetings that would govern this advisory panel to allay those concerns. Section 200.47 SEA Responsibilities for Supplemental Education Services—While we appreciate any guidance the Department may offer states regarding supplemental education services (SES), we have significant reservations about additional regulatory requirements for state education agencies in approving and monitoring SES providers as well as monitoring and reporting on the local education agencies’ implementation of SES requirements. We would once again renew our request to allow states to require SES providers to use highly qualified teachers. As we wrote in comments during the original consideration of section 200.47, “Because of the Department’s continued emphasis, and the statute’s requirements in these same areas, on highly qualified teachers and scientifically-based research, we are dismayed that similar requirements are not made of supplemental service providers, ‘as a condition of approval, a State may not require a provider to— (i) Hire only staff who meet the requirements under 200.55 and 200.56; or (ii) Document that its instructional strategies include scientifically based research, as that term is defined in section 9101(37) of the Act.’ “We are disheartened that the prohibition on states from rejecting supplemental service providers applicants based solely on the absence of highly qualified teachers or scientifically-based research limits the states’ authority in selecting the very best educational services for students. It is especially disappointing because these are the worst performing students in the worst performing schools despite the statute’s requirements for public schools to provide highly qualified teachers and research-based instruction. Thus, the students most in need of quality assistance are less likely to receive it because of the regulatory intrusion into the states’ decision-making authority. “In the name of state flexibility, we ask that the Secretary remove these prohibitions from the regulations and allow states to set their own selection criteria and determine for themselves whether the use of highly qualified personnel or the use of scientifically-based research should be a basic requirement of supplemental service providers.” Section 200.56 Definition of “highly qualified teacher”—We appreciate the special consideration of special education teachers and the cross-reference between the “highly qualified teacher” definitions contained in the statutes and regulations of both the No Child Left Behind Act and the Individuals with Disabilities Education Act (IDEA). Still, we would have preferred a greater reconciliation between the two laws on this issue since states will still be required to collect and report on two different definitions of highly qualified teachers with respect to students with disabilities and special education teachers. Thank you for the opportunity to comment on these proposed regulations. We have enjoyed working with the Secretary and the U.S. Department of Education in successfully implementing the No Child Left Behind Act and look forward to continuing this productive relationship through the end of the administration. If your staff has any questions about the information provided in this letter or we can be of further assistance during the development of the regulations, please have them contact David Griffith, Director of Governmental Affairs, at 703/684-4000. Sincerely, Brenda Lilienthal Welburn Executive Director
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