FR Doc 03-6949
[Federal Register: March 24, 2003 (Volume 68, Number 56)]
[Notices]
[Page 14205-14227]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF EDUCATION
Notice of Written Findings and Compliance Agreement
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of written findings and compliance agreement.
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SUMMARY: Section 457 of the General Education Provisions Act (GEPA)
authorizes the U.S. Department of Education to enter into a compliance
agreement with a recipient that is failing to comply substantially with
Federal program requirements. In order to enter into a compliance
agreement, the Department must determine, in written findings, that the
recipient cannot comply until a future date with the applicable program
requirements, and that a compliance agreement is a viable means of
bringing about such compliance. On April 4, 2002, the Assistant
Secretary for Elementary and Secondary Education (Assistant Secretary)
entered into a compliance agreement with the Montana Office of Public
Instruction (OPI). Under section 457(b)(2) of GEPA, the written
findings and compliance agreement must be published in the Federal
Register.
FOR FURTHER INFORMATION CONTACT: Carlos Mart[iacute]nez, U.S.
Department of Education, Office of Elementary and Secondary Education,
400 Maryland Avenue, SW., Room 3W212, Washington, DC 20202-6132.
Telephone: (202) 260-2493.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: Under Title I, Part A of the Elementary and
Secondary Education Act of 1965 (Title I), each State, including the
District of Columbia and Puerto Rico, was required to develop or adopt,
by the 1997-98 school year, challenging content standards in at least
reading/language arts and mathematics that describe what the State
expects all students to know and be able to do. Each State also was
required to develop or adopt performance standards aligned with its
content standards that describe three levels of proficiency to
determine how well students are mastering the content standards.
Finally, by the 2000-2001 school year, each State was required to
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the
yearly performance of schools in enabling students to meet the State's
performance standards.
OPI submitted, and the Department approved, evidence that it has
content standards in at least reading/language arts and mathematics. In
November 2000, OPI submitted evidence of its final assessment system.
The Department submitted that evidence to a panel of three assessment
experts for peer review. Following that review, the Acting Deputy
Assistant Secretary for Elementary and Secondary Education (Acting
Deputy Assistant Secretary) concluded that OPI's proposed final
assessment system did not meet a number of the Title I requirements.
Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies
available to the Department when it determines that a recipient ``is
failing to comply substantially with any requirement of law''
applicable to Federal program funds the Department administers.
Specifically, the Department is authorized to--
(1) Withhold funds;
(2) Obtain compliance through a cease and desist order;
(3) Enter into a compliance agreement with the recipient; or
(4) Take any other action authorized by law.
20 U.S.C. 1234c(a)(1) through (a)(4).
In a letter dated July 6, 2001 to Linda H. McCulloch,
Superintendent of Public Instruction for Montana, the Acting Deputy
Assistant Secretary notified OPI that, in order to remain eligible to
receive Title I funds, it must enter into a compliance agreement with
the Department. The purpose of a compliance agreement is ``to bring the
recipient into full compliance with the applicable requirements of law
as soon as feasible and not to excuse or remedy past violations of such
requirements.'' 20 U.S.C. 1234f(a). In order to enter into a compliance
agreement with a recipient, the Department must determine, in written
findings, that the recipient cannot comply until a future date with the
applicable program requirements, and that a compliance agreement is a
viable means for bringing about such compliance.
On April 4, 2002, the Assistant Secretary issued written findings,
holding that compliance by OPI with the Title I standards and
assessment requirements is genuinely not feasible until a future date.
Having submitted its assessment system for peer review in November
2000, OPI was not able to make the significant changes to its system
that the Department's review required in time to meet the spring 2001
statutory deadline to have approved assessments in place. As a result,
OPI administered its unapproved assessment system in 2001. The
Assistant Secretary also determined that a compliance agreement
represents a viable means of bringing about compliance because of the
steps OPI has already taken to comply and the plan it has developed for
further action. The agreement sets out the action plan that OPI must
meet to come into compliance with the Title I requirements. This plan,
coupled with specific reporting requirements, will allow the Assistant
Secretary to monitor closely OPI's progress in meeting the terms of the
compliance agreement. The Superintendent of Public Instruction for
Montana, Linda H. McCulloch, signed the agreement on April 1, 2002 and
the Assistant Secretary signed the compliance agreement on April 4,
2002.
As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2),
the text of the Assistant Secretary's written findings is set forth as
appendix A and the compliance agreement is set forth as appendix B of
this notice.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in Text or Adobe
Portable Document Format (PDF), on the Internet at the following site:
http://www.ed.gov/legislation/FedRegister.
To use PDF, you must have Adobe Acrobat Reader, which is available
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the Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register is available on GPO access
at: http://www.access.gpo.gov/nara/index.html
(Authority: 20 U.S.C. 1234c, 1234f, 6311)
Dated: March 12, 2003.
Eugene W. Hickok,
Under Secretary of Education.
Appendix A--Text of the Written Findings of the Assistant Secretary for
Elementary and Secondary Education
I. Introduction
The Assistant Secretary for Elementary and Secondary Education
(Assistant Secretary) of the U.S. Department of Education
(Department) has determined, pursuant to 20
[[Page 14206]]
U.S.C. 1234c and 1234f, that the Montana Office of Public
Instruction (OPI) has failed to comply substantially with certain
requirements of Title I, Part A of the Elementary and Secondary
Education Act of 1965 (Title I), 20 U.S.C. 6301 et seq., and that it
is not feasible for OPI to achieve full compliance immediately.
Specifically, the Assistant Secretary has determined that OPI failed
to meet a number of the Title I requirements concerning the
development of performance standards and an aligned assessment
system within the statutory timeframe.
For the following reasons, the Assistant Secretary has concluded
that it would be appropriate to enter into a compliance agreement
with OPI to bring it into full compliance as soon as feasible.
During the effective period of the compliance agreement, which ends
three years from the date of these findings, OPI will be eligible to
receive Title I funds as long as it complies with the terms and
conditions of the agreement as well as the provisions of Title I,
Part A and other applicable Federal statutory and regulatory
requirements.
II. Relevant Statutory and Regulatory Provisions
A. Title I, Part A of the Elementary and Secondary Education Act of
1965
Title I, Part A of the Elementary and Secondary Education Act of
1965 (Title I), 20 U.S.C. 6301 et seq., provides financial
assistance, through State educational agencies, to local educational
agencies to provide services in high-poverty schools to students who
are failing or at risk of failing to meet the State's student
performance standards. Under Title I, each State, including the
District of Columbia and Puerto Rico, was required to develop or
adopt, by the 1997-98 school year, challenging content standards in
at least reading/language arts and mathematics that describe what
the State expects all students to know and be able to do and
performance standards, aligned with those content standards, that
describe three levels of proficiency to determine how well students
are mastering the content standards.
By the 2000-2001 school year, Title I required each State to
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the
yearly performance of schools and school districts in enabling
students to meet the State's performance standards. These
assessments must meet the following requirements:
[sbull] The assessments must be aligned to a State's content and
performance standards.
[sbull] They must be administered annually to students in at
least one grade in each of three grade ranges: grades 3 through 5,
grades 6 through 9, and grades 10 through 12.
[sbull] They must be valid and reliable for the purpose for
which they are used and of high technical quality.
[sbull] They must involve multiple measures, including measures
that assess higher-order thinking skills.
[sbull] They must provide for the inclusion of all students in
the grades assessed, including students with disabilities and
limited English proficient students.
[sbull] They must provide individual reports.
[sbull] Results from the assessments must be disaggregated and
reported by major racial and ethnic groups and other categories.
20 U.S.C. 6311(b)(3).\1\
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\1\ On January 8, 2002, Title I of the Elementary and Secondary
Education Act was reauthorized by the No Child Left Behind Act of
2001 (NCLB) (Pub. L. 107-110). The NCLB made several significant
changes to the Title I standards and assessment requirements. First,
it requires that each State develop academic content and student
achievement standards in science by the 2005-06 school year. Second,
by the 2005-06 school year, it requires a system of aligned
assessments in each of grades 3 through 8 and once during grades 10
through 12. Third, it requires science assessments in at least three
grade spans by the 2007-08 school year. Fourth, the NCLB
significantly changes the definition of adequate yearly progress
each State must establish to hold schools and school districts
accountable, based on data from the 2001-02 test administration.
Finally, by the 2002-03 school year, the NCLB requires State and
school district report cards that include, among other things,
assessment results disaggregated by various subgroups, two-year
trend data, and percent of students tested.
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B. The General Education Provisions Act
The General Education Provisions Act (GEPA) provides a number of
options when the Assistant Secretary determines a recipient of
Department funds is ``failing to comply substantially with any
requirement of law applicable to such funds.'' 20 U.S.C. 1234c. In
such case, the Assistant Secretary is authorized to--
(1) Withhold funds;
(2) Obtain compliance through a cease and desist order;
(3) Enter into a compliance agreement with the recipient; or
(4) Take any other action authorized by law. 20 U.S.C.
1234c(a)(1) through (a)(4).
Under section 457 of GEPA, the Assistant Secretary may enter
into a compliance agreement with a recipient that is failing to
comply substantially with specific program requirements. 20 U.S.C.
1234f. The purpose of a compliance agreement is ``to bring the
recipient into full compliance with the applicable requirements of
the law as soon as feasible and not to excuse or remedy past
violations of such requirements.'' 20 U.S.C. 1234f(a). Before
entering into a compliance agreement with a recipient, the Assistant
Secretary must hold a hearing at which the recipient, affected
students and parents or their representatives, and other interested
parties are invited to participate. At that hearing, the recipient
has the burden of persuading the Assistant Secretary that full
compliance with the applicable requirements of law is not feasible
until a future date and that a compliance agreement is a viable
means for bringing about such compliance. 20 U.S.C. 1234f(b)(1). If,
on the basis of all the available evidence, the Assistant Secretary
determines that compliance until a future date is genuinely not
feasible and that a compliance agreement is a viable means for
bringing about such compliance, the Assistant Secretary must make
written findings to that effect and publish those findings, together
with the substance of any compliance agreement, in the Federal
Register. 20 U.S.C. 1234f(b)(2).
A compliance agreement must set forth an expiration date, not
later than three years from the date of these written findings, by
which time the recipient must be in full compliance with all program
requirements. 20 U.S.C. 1234f(c)(1). In addition, a compliance
agreement must contain the terms and conditions with which the
recipient must comply during the period that agreement is in effect.
20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of
the terms and conditions of the compliance agreement, the Assistant
Secretary may consider the agreement no longer in effect and may
take any of the compliance actions described previously. 20 U.S.C.
1234f(d).
III. Analysis
A. Overview of Issues To Be Resolved in Determining Whether a
Compliance Agreement Is Appropriate
In deciding whether a compliance agreement between the Assistant
Secretary and OPI is appropriate, the Assistant Secretary must first
determine whether compliance by OPI with the Title I standards and
assessment requirements is genuinely not feasible until a future
date. 20 U.S.C. 1234f(b). The second issue that the Assistant
Secretary must resolve is whether OPI will be able, within a period
of up to three years, to come into compliance with the Title I
requirements. Not only must OPI come into full compliance by the end
of the effective period of the compliance agreement, it must also
make steady and measurable progress toward that objective while the
compliance agreement is in effect. If such an outcome is not
possible, then a compliance agreement between the Assistant
Secretary and OPI would not be appropriate.
B. OPI Has Failed To Comply Substantially With Title I Standards
and Assessment Requirements
In November 2000, OPI submitted evidence of its final assessment
system. The Assistant Secretary submitted that evidence to a panel
of three assessment experts for peer review. Following that review,
the Acting Deputy Assistant Secretary for Elementary and Secondary
Education (Acting Deputy Assistant Secretary) concluded that OPI's
proposed final assessment system did not meet a number of the Title
I requirements. Specifically, the Acting Deputy Assistant Secretary
determined that OPI must do the following:
[sbull] Provide evidence that Montana's performance standards
are aligned with your State content standards, and that a broad base
of stakeholders was involved in the development of the performance
standards.
[sbull] Complete the development of the second phase of the
Montana assessment system addressing multiple measures that assess
higher order thinking skills and the portions of the State standards
that are not currently being assessed. Montana must describe the
design of this phase of the assessment system, including the content
to be assessed, the processes by which the system is to be created,
the nature of the scores to be produced, and how the scores will be
aggregated for decision making at the school, district, and State
levels.
[[Page 14207]]
[sbull] Provide evidence of further objective alignment studies
completed by teachers and other experts knowledgeable about
Montana's content standards and submit the results for peer review.
Montana previously submitted for peer review evidence of a study
done by the contractor of the alignment between the ITBS and ITED
and Montana's content standards.
[sbull] For the Alternate Assessment Scale, Montana must provide
evidence of technical quality, the timeline for implementation, and
the role of the Scale in the State's accountability system.
[sbull] Provide complete participation data for students with
disabilities and limited English proficient students so that
Montana's inclusion practices relating to assessment, reporting, and
accountability can be evaluated.
[sbull] Provide data showing that all assessments used in
Montana for Title I accountability meet commonly accepted
professional standards for technical quality consistent with the
uses made of the results.
[sbull] Develop and disseminate annual school reports that
display assessment results for all students, disaggregated by
gender, major racial/ethnic groups, limited English proficient
status, migrant status, students with disabilities as compared to
non-disabled students, and economically disadvantaged students
compared to non-disadvantaged students.
[sbull] Upon completion of the development of performance
standards, individual student interpretive and descriptive reports
must be generated and disseminated to parents to inform them how
well their students are meeting those performance standards.
[sbull] Provide the Department with the State's definition of
``full academic year'' for including students in determining
adequate yearly progress.
C. OPI Cannot Correct Immediately its Noncompliance With the Title
I Standards and Assessment Requirements
Under the Title I statute, OPI was required to implement its
final assessment system no later than the 2000-2001 school year. 20
U.S.C. 6311(b)(6). OPI submitted evidence of its assessment system
in November 2000, but the Acting Deputy Assistant Secretary
determined, on the basis of that evidence, that OPI's system did not
fully meet the Title I requirements. Due to the enormity and
complexity of developing a new assessment system that addressed the
Acting Deputy Assistant Secretary's concerns, OPI was not able to
complete that task between the time it submitted its system for
review and the spring 2001 assessment window. Thus, in March 2001,
OPI administered the assessment that the Acting Deputy Assistant
Secretary had determined did not meet the Title I requirements. As a
result, the Assistant Secretary finds that it is not genuinely
feasible for OPI to come into compliance until a future date.
D. OPI Can Meet the Terms and Conditions of a Compliance Agreement
and Come Into Full Compliance With the Requirements of Title I
Within Three Years
At the public hearing, OPI presented evidence of its commitment
and capability to come into compliance with the Title I standards
and assessment requirements within three years. For example, OPI
developed, for grades 4, 8 and 12, a set of approved content
standards in reading and mathematics as well as standards in a
number of other areas such as science and social studies. OPI also
developed performance descriptors in reading and mathematics. OPI
has also developed and administered an Alternate Assessment Scale
for students with disabilities. It must modify the Alternate
Assessment Scale, however, to ensure full alignment and inclusion of
all students. Moreover, OPI has committed resources and personnel to
continue the work of developing, aligning, implementing, and
evaluating its assessment system.
Finally, OPI has developed a comprehensive action plan,
incorporated into the compliance agreement, that sets out a very
specific schedule that OPI has agreed to meet during the next three
years for attaining compliance with the Title I standards and
assessment requirements. As a result, OPI is committed not only to
coming into full compliance within three years, but to meeting a
stringent, but reasonable, schedule for doing so. The action plan
also demonstrates that OPI will be well on its way to meeting the
new standards and assessment requirements of the No Child Left
Behind Act of 2001. The compliance agreement also sets out
documentation and reporting procedures that OPI must follow. These
provisions will allow the Assistant Secretary to ascertain promptly
whether OPI is meeting each of its commitments under the compliance
agreement and is on schedule to achieve full compliance within the
effective period of the agreement.
The task of developing an assessment system that meets the Title
I requirements is not a quick or easy one. However, the Assistant
Secretary has determined that, given the commitment of OPI to comply
with the terms and conditions of the compliance agreement, it is
possible for OPI to come into full compliance with the Title I
standards and assessment requirements within three years.
IV. Conclusion
For the foregoing reasons, the Assistant Secretary finds the
following: (1) That full compliance by OPI with the standards and
assessment requirements of Title I is not feasible until a future
date; and (2) that OPI can meet the terms and conditions of the
attached compliance agreement and come into full compliance with the
Title I standards and assessment requirements within three years of
the date of these findings. Therefore, the Assistant Secretary has
determined that it is appropriate to enter into a compliance
agreement with OPI. Under the terms of 20 U.S.C. 1234f, that
compliance agreement becomes effective on the date of these
findings.
Dated: April 4, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.
Appendix B--Text of the Compliance Agreement
Compliance Agreement Under Title I of the Elementary and Secondary
Education Act Between the United States Department of Education and the
Montana Office of Public Instruction
Introduction
Title I of the Elementary and Secondary Education Act of 1965
(Title I) required each State, including the District of Columbia
and Puerto Rico, to develop or adopt, by the 1997-98 school year,
challenging content standards in at least reading/language arts and
mathematics that describe what the State expects all students to
know and be able to do and performance standards, aligned with those
content standards, that describe three levels of proficiency to
determine how well students are mastering the content standards. By
the 2000-2001 school year, Title I required each State to develop or
adopt a set of student assessments in at least reading/language arts
and mathematics that would be used to determine the yearly
performance of schools and school districts in enabling students to
meet the State's performance standards.
The Montana Office of Public Instruction (OPI) was not able to
meet these requirements by the statutory deadlines. In order to be
eligible to continue to receive Title I funds while working to
comply with the statutory requirements, the Superintendent of Public
Instruction indicated OPI's interest in entering into a compliance
agreement with the Office of Elementary and Secondary Education
(OESE) of the United States Department of Education. On December 10,
2001, OESE conducted a public hearing regarding OPI's ability to
come into compliance with the Title I standards and assessment
requirements within three years. Based on testimony at that hearing,
the Assistant Secretary for Elementary and Secondary Education
(Assistant Secretary) determined that compliance by OPI with the
Title I standards and assessment requirements was genuinely not
feasible until a future date. The Assistant Secretary also
determined that a compliance agreement represents a viable means of
bringing about compliance because of steps OPI has already taken to
address its noncompliance, its commitment of resources and the
action plan it has developed. The Assistant Secretary's written
findings are incorporated into this agreement.
Pursuant to this compliance agreement under 20 U.S.C. 1234f, OPI
must be in full compliance with the requirements of Title I no later
than three years from the effective date of this agreement.
Specifically, OPI must meet, and document that it has met, the
following requirements:
1. Complete development of performance standards by aligning
performance descriptors to Montana's content standards and set cut
scores on the assessments that define levels of performance.
[[Page 14208]]
2. Develop or select an academic assessment system that
represents the full range of Montana's content standards and
performance standards in at least reading/language arts and
mathematics consistent with the Title I requirements for use of
multiple measures of student achievement, including measures that
assess higher-order thinking and understanding. Document the
alignment of the assessment system with Montana's content and
student performance standards.
3. Document that all students are included in the assessment
system, particularly limited English proficient students and
students with disabilities. Include test results for all students in
school accountability measures. Monitor school-level decisions
regarding inclusion of all students in the assessment system.
4. All assessments used in the State for Title I accountability
must meet commonly accepted professional standards for technical
quality consistent with the uses made of the results. For the
Alternate Assessment Scale, Montana must provide evidence of
technical quality.
5. Develop and disseminate individual student interpretive and
descriptive reports. Report assessment results for the state, each
district, and school that are disaggregated by all required
categories.
6. Meet requirements under the No Child Left Behind Act of 2001
related to assessments and accountability.
During the period that this compliance agreement is in effect,
OPI is eligible to receive Title I, Part A funds if it complies with
the terms and conditions of this agreement, as well as the
provisions of Title I, Part A and other applicable Federal statutory
and regulatory requirements. Specifically, the compliance agreement
sets forth action steps OPI must meet to come into compliance with
the Title I standards and assessment requirements. OPI must submit
documentation concerning its compliance with these action steps.
The action steps incorporated into this compliance agreement may
be amended by joint agreement of the parties, provided full
compliance can still be accomplished by the expiration date of the
agreement.
If OPI fails to comply with any of the terms and conditions of
this compliance agreement, including the action steps below, the
Department may consider the agreement no longer in effect and may
take any action authorized by law, including the withholding of
funds or the issuance of a cease and desist order. 20 U.S.C.
1234f(d).
For the Montana Office of Public Instruction:
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Linda H. McCulloch,
Superintendent of Public Instruction.
April 1, 2002
For the United States Department of Education:
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Susan B. Neuman,
Assistant Secretary, Office of Elementary and Secondary Education.
April 4, 2002.
Date this compliance agreement becomes effective: April 5, 2002
Expiration date of this agreement: April 5, 2005.
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[FR Doc. 03-6949 Filed 3-21-03; 8:45 am]
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