Written Findings and Compliance Agreement With the District of Columbia Public Schools; Notice of written findings and compliance agreement [OESE]

[Federal Register: June 11, 2003 (Volume 68, Number 112)]
[Notices]
[Page 34914-34929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jn03-63]

Download:

-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

Written Findings and Compliance Agreement With the District of
Columbia Public Schools

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

ACTION: Notice of written findings and compliance agreement.

-----------------------------------------------------------------------

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 compliance. On March 29, 2002, the Assistant Secretary
for Elementary and Secondary Education (Assistant Secretary) entered a
compliance agreement with the District of Columbia Public Schools
(DCPS). According to section 457(b)(2) of GEPA, the written findings
and compliance agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Dr. Sue Rigney, U.S. Department of
Education, Office of Elementary and Secondary Education, 400 Maryland
Avenue, SW., Room 3C139, Washington, DC 20202-6132. Telephone: (202
260-0931).
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 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.
DCPS submitted, and the Department approved, evidence that it has
content standards and performance descriptors in at least reading/
language arts and mathematics. In October 2000, DCPS submitted evidence
of its final assessment system and performance standards. 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 DCPS' proposed final
assessment system and performance standards 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 (4)

In a letter dated June 20, 2001, to Dr. Paul L. Vance
Superintendent of Schools for the District of Columbia, the 3 Acting
Deputy Assistant Secretary notified DCPS 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 March 29, 2002, the Assistant Secretary issued written findings,
holding that compliance by DCPS 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 October 2000,
DCPS 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,
DCPS 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 DCPS has already taken to comply, its commitment of resources,
and the plan it has developed for further action agreement sets out the
action plan that DCPS 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
DCPS' progress in meeting terms of the compliance agreement. The
Superintendent of DCPS, Dr. Paul L. Vance, signed the Agreement on
March 28, 2002 and the Assistant Secretary signed it on March 29, 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 2002 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
free at this site. If you have questions about using 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 is available on GPO access
at http//http://www.access.gpo.gov/nara/index.html. (Authority: 20 U.S.C. 1234c, 1234f, 6311)

Dated: June 5, 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

[[Page 34915]]

the U.S. Department of Education (Department) has determined,
pursuant to 20 U.S.C. 1234c and 1234f, that the District of Columbia
Public Schools (DCPS) 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 DCPS to achieve full compliance
immediately. Specifically, the Assistant Secretary has determined
that DCPS failed to meet a number of the Title I requirements
concerning the development of performance standards and an aligned
assessment system within the statutory time frame.
For the following reasons, the Assistant Secretary has concluded
that it would be appropriate to enter into a compliance agreement
with DCPS 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, DCPS 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 standard. 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\
---------------------------------------------------------------------------

\1\ On January 8, 2002, the No Child Left Behind Act of 2001
reauthorized Title I of the Elementary and Secondary Education Act
(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.
---------------------------------------------------------------------------

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 (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 is genuinely not feasible until a future
date 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 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 DCPS is appropriate, the Assistant Secretary must
first determine whether compliance by DCPS 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 DCPS will be able,
within a period of up to three years to come into compliance with
the Title I requirements. Not only must DCPS 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 DCPS would not be appropriate.

B. DCPS Has Failed To Comply Substantially With Title I Standards
and Assessment Requirements.

In October 2000, DCPS 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 DCPS'
proposed final assessment system did not meet a number of the Title
I requirements Specifically the Acting Deputy Assistant Secretary
determined that DCPS must do the following:
[sbull] Develop or select an assessment system that represents
the full range of the DCPS content standards in at least reading/
language arts and mathematics at the benchmark grades.
[sbull] In addition, DCPS must document the alignment of the
assessments with DCPS' content and performance standards.
[sbull] Complete the creation of DCPS' performance standards by
identifying the scores on the assessments that define each of DCPS'
performance levels.
[sbull] Provide data showing that all assessments used for Title
I accountability meet commonly accepted professional standards for
technical quality consistent with DCPS' use of the results.

[[Page 34916]]

[sbull] Establish assessment procedures and reports that include
all students with disabilities in DCPS' assessment system, including
completion of an alternate assessment; include the test results for
these students in DCPS' school accountability measures.
[sbull] Establish assessment procedures to maximize
participation of limited English proficient (LEP) students in the
assessment system and include test results for these students in
DCPS' school accountability measures and determine the
practicability of administering a native language version of DCPS'
assessments and include the results in the accountability system.
[sbull] Monitor school-level decisions regarding participation
in the alternate assessment or exemptions based on limited English
proficiency to ensure consistency across schools and over time.
[sbull] Provide to the Department accurate enrollment,
participation, and exclusion data; report school-level results for
all students tested; and base school accountability measures on all
students.
[sbull] Develop and disseminate annual school reports that
display results for all students, disaggregated by gender, major
racial and ethnic groups, LEP status, migrant status students with
disabilities compared to non-disabled students, and economically
disadvantaged students compared to non-disadvantaged students.
[sbull] Modify individual student reports to reflect DCPS'
performance standards when the standards are completed.

C. DCPS Cannot Correct Immediately Its Noncompliance With the Title
I Standards and Assessment Requirements

Under the Title I statute, DCPS was required to implement a
final assessment system no later than the 2000-2001 school year (20
U.S.C. 6311(b)(6)). DCPS submitted evidence of its assessment system
in October 2000, but the Acting Deputy Assistant Secretary
determined, on the basis of that evidence, DCPS' 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, DCPS was not able to
complete that task between the time it submitted its system for
review and the spring 2001 assessment window. Thus, in April 2001,
DCPS 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 DCPS to come into compliance until a future date.

D. DCPS 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, DCPS presented evidence of its commitment
and capability to come into compliance with the Title I standards
and assessment requirements within three years.
For example, in one year, DCPS developed, for pre-kindergarten
through grade 12, a set of approved content standards in language
arts and mathematics as well as standards in a number of other areas
such as science. DCPS also developed approved performance
descriptors in reading and mathematics. DCPS has also developed and
piloted alternate assessments for students with disabilities and
limited English proficient students including a portfolio assessment
for English language learners. It must modify these alternate
assessments, however, to ensure full alignment and inclusion of all
students. Moreover, DCPS has committed resources and personnel to
continue the work of developing, aligning, implementing, and
evaluating assessment system.
Finally, DCPS has developed a comprehensive action plan,
incorporated into the compliance agreement, that sets out a very
specific schedule that DCPS has agreed to meet during the next three
years for attaining compliance with the Title I standards and
assessment requirements. As a result, DCPS 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 DCPS 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 DCPS must follow. These
provisions will allow the Assistant Secretary to ascertain promptly
whether DCPS is meeting each of the 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 DCPS to
comply with the terms and conditions of the compliance agreement, it
is possible for DCPS 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 DCPS with the standards and
assessment requirements of Title I is not feasible until a future
date; and (2) that DCPS 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 DCPS. Under the terms of 20 U.S.C. 1234f, that
compliance agreement becomes effective on the date of these
findings.

Dated: March 29, 2002.

Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.

Compliance Agreement Under Title I of the Elementary and Secondary
Education Act Between the United States Department of Education and the
District of Columbia Public Schools

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. Title I also required each State 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, 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 in enabling students to meet the State's performance
standards.
The District of Columbia Public Schools (DCPS) 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, Dr. Paul L. Vance,
Superintendent of DCPS, indicated DCPS' interest in entering into a
compliance agreement with the Office of Elementary and Secondary
education (OESE) of the United States Department of Education. On
November 13, 2001, OESE conducted a public hearing regarding DCPS'
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 DCPS
with the Title I standards and assessment requirements was genuinely
not feasible until a future date because of the ``magnitude and
complexity of meeting those requirements.'' The Assistant Secretary
also determined that a compliance agreement represents a viable
means of bringing about compliance because of the steps DCPS has
already taken to address its noncompliance, its commitment of
resources and the plans it has developed for further action. These
plans are summarized in the Commitments and Timetable below.
Pursuant to this Compliance Agreement under 20 U.S.C. Sec.
1234r, DCPS must be in full compliance with the requirements of
Title I no later than three years from the date of the Assistant
Secretary's written findings, a copy of which is attached to, and
incorporated by reference into, this Agreement. Specifically, DCPS
must ensure and document that it will have met the following
requirements:
1. Develop or select an assessment that represents the full
range of the DCPS content standards at the benchmark grades in at
least reading language arts and mathematics and is consistent with
Title I requirements for use of multiple measures of student
performance, including measures that assess higher order

[[Page 34917]]

thinking and understanding. Document the alignment of the
assessment(s) with DCPS content and performance standards, and
provide data showing that all assessments used for Title I
accountability meet commonly accepted professional standards for
technical quality consistent with the District's uses of the
results. Reliability of both student and school classifications
should be reported.
2. Complete the definition of DCPS performance standards by
identifying the scores on the assessment(s) that define each of the
DCPS performance levels. DCPS teachers or other persons who are
thoroughly familiar with the DCPS standards must be included in this
activity.
3. Establish assessment procedures to maximize participation of
limited English proficient students (LEP) in the assessment and
include test results for these students in the school accountability
measures. Any students exempted from the regular assessment on the
basis of language proficiency must be included in the accountability
system in some manner. DCPS is also responsible for determining the
practicability of administering a native language version of the
DCPS assessment(s), and including the results in the accountability
system.
4. Monitor school-level decisions regarding participation in the
alternate assessment or exemption based on limited English
proficiency to ensure consistency across schools and over time.
5. Develop and disseminate annual school reports that display
results for all students, disaggregated by gender, major racial/
ethnic groups, LEP status, migrant status, students with
disabilities as compared to non-disabled, and economically
disadvantaged students compared to non-disadvantaged. These school
profiles must be shared with teachers and other educators, parents
and the community.
During the period that this Compliance Agreement is in effect,
DCPS 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 above the action steps DCPS must take to come into
compliance with its Title I obligations.
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 DCPS 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.
For the District of Columbia Public Schools:

Dated: March 28, 2002.
Dr. Paul L. Vance,
Superintendent.
For the United States Department of Education:

Dated: March 29, 2002.
Susan B. Neuman, Assistant Secretary,
Office of Elementary and Secondary Education.
Date this Compliance Agreement becomes effective: March 29,
2002.
Expiration Date of this Agreement: March 29, 2005.
BILLING CODE 4000-01-P

[[Page 34918]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.011

[[Page 34919]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.012

[[Page 34920]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.013

[[Page 34921]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.014

[[Page 34922]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.015

[[Page 34923]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.016

[[Page 34924]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.017

[[Page 34925]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.018

[[Page 34926]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.019

[[Page 34927]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.020

[[Page 34928]]

[GRAPHIC] [TIFF OMITTED] TN11JN03.021

[[Page 34929]]

[FR Doc. 03-14719 Filed 6-10-03; 8:45 am]

BILLING CODE 4000-01-C