FR Doc 04-14358
[Federal Register: June 24, 2004 (Volume 69, Number 121)]
[Proposed Rules]
[Page 35461-35465]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn04-24]
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Part III
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged;
Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1820-AB55
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing
programs administered under Part A of Title I of the Elementary and
Secondary Education Act of 1965, as amended (ESEA). These proposed
regulations would implement statutory provisions regarding State, local
educational agency (LEA), and school accountability for the academic
achievement of limited English proficient (LEP) students and are needed
to implement changes to Title I of the ESEA made by the No Child Left
Behind Act of 2001 (NCLB Act).
DATES: We must receive your comments on or before August 9, 2004.
ADDRESSES: Address all comments about these proposed regulations to
Jacquelyn C. Jackson, Ed.D., 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, FB-6, Washington, DC 20202-6132. The Fax number for submitting
comments is (202) 260-7764.
If you prefer to send your comments through the Internet, you may
address them to us at the U.S. Government Web site:
http://www.regulations.gov.
or you may send your Internet comments to us at the following
address:TitleIrulemaking@ed.gov.
You must include the term ``proposed rule'' in the subject line of
your electronic message.
FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D. Telephone:
(202) 260-0826.
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:
Invitation To Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 3W202, FB-6, 400
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m.
and 4 p.m., Eastern time, Monday through Friday of each week except
Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
These proposed regulations are designed to provide State
educational agencies (SEAs) with expanded flexibility in assessing LEP
students against State content standards and in counting the
performance of LEP students as a group in measuring whether a school
and LEA are meeting adequate yearly progress (AYP) goals. Specifically,
the proposed regulations would allow a State to exempt ``recently
arrived'' LEP students from one administration of the State's reading/
language arts assessment. Recently arrived students are students with
limited English proficiency who have attended schools in the United
States (not including Puerto Rico) for less than 10 months before the
test is administered. In addition, the proposed regulations would allow
a State not to count in AYP determinations the scores of the recently
arrived students who do take the reading/language arts and the
mathematics assessments during that period.
These proposed regulations are needed to implement statutory
provisions regarding State, LEA, and school accountability for the
academic achievement of recently arrived students with limited English
language proficiency. As a diverse Nation, we educate students from
many different countries. There are approximately 5.5 million students
in U.S. schools who do not have English as their first language. Some
States report that as many as 120 languages are represented in their
schools. Often, the recently arrived students have difficulty
demonstrating their knowledge through State content assessments in
English due to language barriers or schooling experiences in their
native country. Students need time to become acclimated to their new
community and to schooling in the United States. Several researchers
have reported the isolation and confusion newcomer students feel in
their schools upon arrival and sometimes well into the first year.\1\
This creates a challenge for the many States that do not offer native
language assessments for all students, and available accommodations
generally would not provide a real opportunity for newly arrived LEP
students to demonstrate their mastery of a content area in English. The
proposed regulations would allow approximately one year for schools and
LEAs to provide intensified language instruction programs well aligned
with the State's English language proficiency (ELP) standards and
linked with State academic content and student academic achievement
standards.
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\1\ See L. Cheng, Challenges for Asian/Pacific American Children
and their Teachers, ERIC Digest (ERIC Clearinghouse on Urban
Education) (1999); J. Dufresne & S. Hall, LEAP English Academy: An
alternative high school for newcomers to the United States, MINNE-WI
TESOL Journal 14 (1997); R. Gonzalez, Title VII Newcomer Program:
Final report 1993-1994, (Austin Independent School District, Texas,
Office of Research and Evaluation) (1994); C. Moran, J. Stobbe, J.
Villamil Tinajero & I. Tinajero, Developing Literacy: Strategies for
working with overage students, reprinted with permission for
distribution at the Symposium on the Education of Over-age LEP
Students with Interrupted Formal Schooling (1997); L. Olsen,
Learning English and learning America: Immigrants in the center of a
storm, Theory into Practice 39, 196-202 (Autumn 2000); L. Olsen, A.
Jaramillo, Z. McCall-Perez, & J. White, Igniting change for
immigrant students: Portraits of three high schools, Oakland, CA:
California Tomorrow (1999).
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These proposed regulations also would allow a State to include
``former LEP'' students within the LEP category in making AYP
determinations for up to two years after they no longer meet the
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State's definition for limited English proficiency. The LEP subgroup is
a subgroup whose membership can change from year to year, as students
who have acquired English language proficiency exit and recently
arrived students enter the subgroup. Because LEP students exit the LEP
category once they attain English language proficiency, school
assessment scores may not reflect gains that the LEP student subgroup
has made in academic achievement.
In order to ensure that no child is left behind, Title I requires
schools, LEAs, and States to be accountable for the achievement of LEP
students and other subgroups of students, including students with
disabilities, economically disadvantaged students and students from
major racial and ethnic groups. The purpose of subgroup accountability
is to ensure that districts and schools address the needs of all of
their students and are held accountable for the achievement of all
students, and that achievement for the school or LEA as a whole does
not mask a school's or LEA's inability to ensure the progress of all
significant subgroups of students. There are significant aspects of the
law that provide a measure of flexibility in how schools and LEAs
demonstrate whether their LEP students are making AYP. Several of these
areas were addressed in a letter the Secretary sent to the Chief State
School Officers dated February 20, 2004. Notwithstanding this existing
flexibility, the Secretary has determined that additional flexibility
with regard to recently arrived LEP students and former LEP students is
needed. Accordingly, his February 20 letter authorized, on a
transitional basis pending the issuance of final regulations, the
elements of flexibility contained in these proposed regulations.
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Section 200.6 Inclusion of All Students
Statute: Under Section 1111(b)(3) of Title I, each State is
required to assess the reading/language arts and mathematics
proficiency of LEP students in a valid and reliable manner, using
reasonable accommodations or, when practicable, native language
assessments. States must assess, in English, a LEP student's
achievement in reading/language arts if the student has been in schools
in the United States (except Puerto Rico) for three or more consecutive
years, although students may be assessed in reading/language arts in
their native language beyond this point for two additional years if the
LEA determines, on a case-by-case basis, that assessment in the native
language would likely yield more accurate and reliable information on
what the student knows and can do. States must also annually assess a
LEP student's English language proficiency (that is, a student's
reading, writing, speaking, and listening skills in English) in grades
K-12.
Current Regulations: The current regulations essentially repeat the
statutory requirements.
Proposed Regulations: The proposed regulations would provide a new
assessment option for a subset of LEP students--recently arrived LEP
students who have attended schools in the United States (not including
Puerto Rico) for less than 10 months. Under proposed Sec. 200.6(b)(4),
a State would be able to exempt recently arrived LEP students from one
administration of the State's reading/language arts assessment.
Recently arrived students would still be required to participate in the
State's mathematics assessment and the ELP assessment.
The proposed regulations also make clear that, in determining the
amount of time before a LEP student must take the State's reading/
language arts assessment in English, this ``transitional year'' must be
counted as the first of the three years in which a LEP student may take
the reading/language arts assessment in his or her native language,
even though the student does not, in fact, take the reading/language
arts assessment at all.
Reasons: In proposing these amendments to Sec. 200.6, we recognize
that taking a State's reading/language arts assessment, even with
accommodations, requires a certain level of English language expertise.
This expertise is essential for LEP students to participate
meaningfully in the reading/language arts assessment and to receive a
valid and reliable assessment score. Absent native language assessments
(which in many cases are not practicable to create) and without this
flexibility, recently arrived LEP students would be required to take a
reading/language arts test that does not produce useful information.
This is a different situation than a mathematics assessment, for which
accommodations are available, to enable recently arrived LEP students
to demonstrate content mastery in mathematics. With this new
flexibility regarding participation in a State's reading/language arts
assessment, recently arrived LEP students will be able to participate
in the State's assessment system in a manner that makes sense given
their educational experiences and English language skills.
In developing the proposed regulation, the Department considered
several options, including the possibility of linking eligibility for
the one-time exemption to a State's determination that a student is
non-English proficient (NEP) based on the State's definition. However,
we concluded that linking the exemption to the period a LEP student has
attended U.S. schools was more appropriate. The intent of the proposed
regulation is to ensure that recently arrived LEP students receive
instruction in U.S. schools for a period roughly equivalent to a school
year prior to including their assessment results in AYP calculations.
Linking the exemption to a determination that a student is NEP would
potentially include a much wider range of students for an indefinite
period of time.
Section 200.20 Making Adequate Yearly Progress
Statute: Under Section 1111(b)(2) of Title I, each State must
define AYP in a manner that measures the achievement of each of various
student groups, including LEP students. When determining which
subgroups to consider in a school, LEA, or State accountability
decision, the State must identify the minimum number of students in a
category that is sufficient for making statistically valid and reliable
decisions. In addition to ensuring that each subgroup meets or exceeds
State objectives in reading/language arts and mathematics achievement,
each school and LEA must demonstrate that not less than 95 percent of
each student subgroup takes the reading/language arts and mathematics
assessment in order to make AYP.
Current Regulations: The current regulations clarify how a school
or LEA makes AYP by specifying how to determine whether the school or
LEA met its goals for reading/language arts and mathematics achievement
and how to calculate participation rates. The current regulations
explain that a State must determine the number of students in a group
that is required in order for the assessment scores of the group to
yield statistically reliable information.
Proposed Regulations: The proposed regulations in Sec. 200.20(f)
would change the requirements for how SEAs are to include the following
students in AYP determinations: (1) Recently arrived LEP students, and
(2) students who were LEP but who have attained English proficiency and
exited the LEP category
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as the State defines that category (i.e., former LEP students).
For recently arrived LEP students, a State would not be required to
include their results from the mathematics or (if taken) reading/
language arts assessments in AYP decisions, even if the student has
been enrolled for a full academic year as defined by the State. If
recently arrived LEP students take either the ELP assessment or the
State's reading/language arts assessment, Sec. 200.20(f)(1)(i) of the
proposed regulations would allow the State to count these students as
participants toward meeting the 95 percent participation requirement
for AYP determinations in reading/language arts. Similarly, Sec.
200.20(f)(1)(i) of the proposed regulations would allow recently
arrived LEP students to be counted as participants for AYP
determinations in mathematics when they take the mathematics
assessment.
Under proposed Sec. 200.20(f)(2), in determining AYP for the LEP
subgroup, a State also may include the assessment scores from the
reading/language arts and mathematics assessments for students who were
LEP but who have exited the LEP category during the last two years. The
proposed regulations would not, however, require a State to include
these former LEP students in counts to determine whether a school or
LEA has a sufficient number of LEP students to yield statistically
reliable information under Sec. 200.7(a), nor do they count for Title
III funding. When reporting the achievement results on State and LEA
report cards, as required under section 1111(h)(1)(C), Sec.
200.20(f)(2)(iii) of the proposed regulations would not allow results
of former LEP students to be included as part of the LEP subgroup
because there is a difference between data used for system
accountability and data used for providing information to parents.
Reasons: In proposing amendments to Sec. 200.20, we are addressing
concerns about the instructional needs of students in the LEP subgroup.
If recently arrived LEP students take the reading/language arts
assessment, a State would not be required to include results from that
assessment in AYP calculations. The purpose of this proposal is to
provide maximum flexibility in a State's assessment and accountability
policies. A State that wants recently arrived LEP students to
participate in the reading/language arts assessment may have them do so
without having their results affect a school's or LEA's AYP rating.
Similarly, when recently arrived LEP students take the mathematics
assessment, the State is not required to include those results in AYP
calculations. This approach ensures that States and LEAs may make
individual assessment decisions for the benefit of these recently
arrived LEP students (e.g., whether a student takes the reading/
language arts assessment or not) without affecting a school's or LEA's
AYP rating.
The LEP subgroup is one whose membership can change from year to
year as English proficient students exit and new students enter the LEP
subgroup. Because LEP students exit the LEP subgroup once they attain
English language proficiency, school assessment results may not reflect
the gains that LEP students have made in academic achievement.
Therefore, these regulations address such concerns by allowing States
additional flexibility when making AYP decisions, particularly with
respect to LEP students.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from existing statutory and regulatory requirements.
Both the statute and existing regulations require States to include LEP
students in assessments and AYP calculations. There are no additional
costs associated with the proposed regulations. There are benefits
because the proposed regulations provide additional flexibility for
assessing recently arrived LEP students and for including in AYP
calculations both recently arrived LEP students and LEP students who
have become English proficient and have exited the LEP category. The
costs and benefits of the underlying provisions were discussed in the
Title I final regulations published in the Federal Register on December
2, 2002 (67 FR 71717).
We have determined that this regulatory action would not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interfere with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.13 Adequate yearly progress in general.)
Could the description of the proposed regulations in the
``Supplementary Information'' section of this preamble be more helpful
in making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
These provisions require States and LEAs to take certain actions to
improve student academic achievement. The Department believes that
these activities will be financed through the appropriations for Title
I and other Federal programs and that the responsibilities encompassed
in the law and regulations will not impose a financial burden that
States and LEAs will have to meet from non-Federal resources.
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
collection requirements.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free
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at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.
(Catalog of Federal Domestic Assistance Number: 84.010 Improving
Programs Operated by Local Educational Agencies)
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Education of children with disabilities, Education of disadvantaged
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indians--education,
Infants and children, Institutions of higher education, Juvenile
delinquency, Local educational agencies, Migrant labor, Nonprofit
private agencies, Private schools, Public agencies, Reporting and
recordkeeping requirements, State-administered programs, State
educational agencies.
Dated: June 21, 2004.
Rod Paige,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend part 200 of title 34 of the Code of Federal Regulations as
follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1. The authority citation for part 200 continues to read as
follows:
Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.
2. Amend Sec. 200.6 as follows:
A. Revise the introductory text in both Sec. 200.6 and paragraph
(b)(1)(i); and
B. Add a new paragraph (b)(4).
The revisions and addition read as follows:
Sec. 200.6 Inclusion of all students.
A State's academic assessment system required under Sec. 200.2
must provide for the participation of all students in the grades
assessed in accordance with this section.
* * * * *
(b) * * *
(1) * * *
(i) Consistent with paragraphs (b)(2) and (b)(4) of this section,
the State must assess limited English proficient students in a valid
and reliable manner that includes--
* * * * *
(4) Recently arrived students with limited English proficiency. (i)
A recently arrived student is a student with limited English
proficiency who has attended school in the United States (not including
Puerto Rico) for less than ten months.
(ii)(A) A State may exempt a recently arrived student from one
administration of the State's reading/language arts assessment under
Sec. 200.2.
(B) If the State does not assess a recently arrived student on the
State's reading/language arts assessment, the State must count this
year as the first of the three years in which the student may take the
State's reading/language arts assessment in a native language under
section 1111(b)(3)(C)(x) of the Act.
(iii) A State must assess a recently arrived student using--
(A) An assessment of English language proficiency under paragraph
(b)(3) of this section; and
(B) The State's mathematics assessment under Sec. 200.2.
* * * * *
3. Amend Sec. 200.20 as follows:
A. Revise the introductory text of paragraphs (a)(1), (b), and
(c)(1); and
B. Add a new paragraph (f).
The revisions and addition read as follows:
Sec. 200.20 Making adequate yearly progress.
* * * * *
(a)(1) A school or LEA makes AYP if, consistent with paragraph (e)
of this section--
* * * * *
(b) If students in any group under Sec. 200.13(b)(7) in a school
or LEA do not meet the State's annual measurable objectives under Sec.
200.18, the school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(c)(1) A school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(f)(1) In including recently arrived students, as defined under
Sec. 200.6(b)(4), in determining AYP, a State may--
(i) Count recently arrived students as participants under paragraph
(c)(1)(i) of this section if they take--
(A) Either an assessment of English language proficiency under
Sec. 200.6(b)(3) or the State's reading/language arts assessment under
Sec. 200.2; and
(B) The State's mathematics assessment under Sec. 200.2; and
(ii) Choose not to include recently arrived students' scores on
either or both the mathematics or reading/language arts assessment in
determining AYP under paragraph (a) or (b) of this section, even if
these students have been enrolled in the same school or LEA for a full
academic year as defined by the State.
(2)(i) In determining AYP for the subgroup of limited English
proficient students, a State may include, for up to two years, students
who were limited English proficient but who no longer meet the State's
definition.
(ii) If the State counts students under paragraph (f)(2)(i) of this
section, the State is not required to--
(A) Count those students in the limited English proficient subgroup
to determine if the number of students is sufficient to yield
statistically reliable information under Sec. 200.7(a);
(B) Assess those students' English language proficiency under Sec.
200.6(b)(3); or
(C) Provide English language services to those students.
(iii) If the State counts students under paragraph (f)(2)(i) of
this section, the State may not report those students in the limited
English proficient subgroup under section 1111(h)(1)(C)(i) and
(h)(2)(B) (reporting achievement data by subgroup on State and LEA
report cards) of the Act.
[FR Doc. 04-14358 Filed 6-23-04; 8:45 am]
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