03-4074. Alabama Department of Education; Written Findings and Compliance Agreement

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 such compliance. On March 27, 2002, the Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) entered into a compliance agreement with the Alabama Department of Education (ALDE). Under section 457(b)(2) of GEPA, the written findings and compliance agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Dr. Grace A. Ross, U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., room 3W118, Washington, DC 20202. Telephone: [phone].

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 alternate 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, which 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.

The Alabama Department of Education (ALDE) submitted, and the Department approved, evidence that it has content standards in at least reading/language arts and mathematics. In October 2000, ALDE submitted evidence of its final assessment system. The Department submitted that evidence to a panel of three assessment experts for peer review and following that review the Acting Assistant Secretary determined that Alabama must enter a compliance agreement with the Department. The ALDE submitted additional information and this evidence was peer reviewed in August 2001. Following that review, the Assistant Secretary for Elementary and Secondary Education concluded that ALDE's 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 (a)(4).

In a letter dated November 19, 2001, to Dr. Edward R. Richardson, Superintendent of Schools for the Alabama Department of Education, the Assistant Secretary notified ALDE 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 8, 2002, the Assistant Secretary issued written findings, holding that compliance by ALDE with the title I standards and assessment requirements is genuinely not feasible until a future date. Having first submitted its assessment system for peer review in October 2000, ALDE was not able to make the significant changes to its system that the Department's peer review required in time to meet the spring 2001 statutory deadline to have approved assessments in place. As a result, ALDE 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 ALDE has already taken to comply, its commitment of resources, and the plan it has developed for further action. The agreement sets out the action plan that ALDE 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 ALDE's progress in meeting the terms of the compliance agreement. Both the Superintendent of ALDE, Dr. Edward R. Richardson, and the Assistant Secretary signed the agreement on March 27, 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.

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Note:

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(Authority: 20 U.S.C. 1234c, 1234f, 6311)

Dated: February 13, 2003.

Eugene W. Hickock,

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 U.S.C. 1234c and 1234f, that the Alabama Department of Education (ALDE) 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 ALDE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that ALDE 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 ALDE 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, ALDE 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:

• The assessments must be aligned to a State's content and performance standards.
• 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.
• They must be valid and reliable for the purpose for which they are used and of high technical quality.
• They must involve multiple measures, including measures that assess higher-order thinking skills.
• They must provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient students.
• They must provide individual reports on the students tested.
• 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]

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 ALDE is appropriate, the Assistant Secretary must first determine whether compliance by ALDE 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 ALDE will be able, within a period of up to three years, to come into compliance with the title I requirements. Not only must ALDE 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 ALDE would not be appropriate.

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

In October 2000, ALDE submitted evidence of its final assessment system. The Assistant Secretary submitted that evidence to a panel of three assessment experts for peer review. Alabama submitted additional information and this evidence was peer reviewed in August 2001. Following that review, the Assistant Secretary for Elementary and Secondary Education concluded that ALDE's proposed final assessment system did not meet a number of the title I requirements. Specifically, the Assistant Secretary determined that ALDE must do the following:

• Develop or select an academic assessment system that represents the full range of the ALDE's academic content standards and academic achievement standards in at least reading/language arts and mathematics and is 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 ALDE's academic content and student achievement standards.
• Provide evidence that the State assessment shall be used for purposes for which such assessments are valid and reliable, and be consistent with relevant, nationally recognized professional and technical standards for such assessments.
• Provide evidence supporting the proposed Alabama Student Assessment Program that includes information on the financial capacity of Alabama to complete this system so that it meets the requirements of title I, including performance standards, alignment, technical quality, inclusion of all students, reporting, and use in the State's accountability system.
• Provide evidence of performance standards having three performance levels, with cut scores for all components of the assessment system, and the process to be used to determine that these performance standards are aligned with content standards and performance descriptors for all components of the assessment system incorporated into the State's accountability system.
• Provide evidence of participation rates for each grade assessed, each subject (reading and math), and, for students with disabilities (SWD) and limited English proficiency (LEP) populations, the total enrollment, number assessed, and number exempted. The number assessed should be broken down by types of assessment accommodation (regular, standard accommodations, non-standard accommodations, and alternate) for all components of the State assessment system that are included in the accountability system.
• Provide evidence of an approved comprehensive policy on assessment guidelines and accommodations for LEP students, clear guidance to LEAs and schools related to the use of language proficiency tests for the LEP team decisions on accommodations for assessments, and a plan for implementing the new LEP inclusion policies and for monitoring LEA compliance with those policies.
• Provide evidence on the process used to incorporate data for SWD and LEP students into the assessment and accountability systems.
• Provide evidence regarding the extent to which all components of the Alabama assessment program contribute to the alignment of the content and performance standards; a description of the State's approach for ensuring alignment; and information on the cognitive complexity of all of the Alabama assessments.
• Provide evidence of a technical manual for the writing component and technical information on all the proposed components when they are available.
• Provide evidence to show how Alabama will disaggregate its performance data in grade spans 3-5 and 6-9 by economically disadvantaged students versus non-economically disadvantaged, race/ethnicity, and LEP status at the State, LEA, and school levels and on how Alabama will disaggregate its performance data by all the required categories at the high school level.
• Provide evidence on how ALDE will provide individual student reports and State, LEA, and school profiles by student performance standards and how it will report and disseminate student performance information to the necessary stakeholders at the LEA and school levels.

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

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

D. ALDE 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, ALDE presented evidence of its commitment and capability to come into compliance with the title I standards and assessment requirements within three years. For example, Alabama successfully amended a law in 2000 that required the State Board of Education to implement a nationally normed test to assist in the assessment of student achievement in grades three through 11. Since that time, the State has been busy designing a new accountability system and adopting a new assessment plan for its schools, one that maintains high standards and comports with Federal law.

Finally, ALDE has developed a comprehensive action plan, incorporated into the compliance agreement, that sets out a very specific schedule that ALDE has agreed to meet during the next three years for attaining compliance with the title I standards and assessment requirements. As a result, ALDE 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 ALDE 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 ALDE must follow. These provisions will allow the Assistant Secretary to ascertain promptly whether ALDE 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 ALDE to comply with the terms and conditions of the compliance agreement, it is possible for ALDE 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 ALDE with the standards and assessment requirements of title I is not feasible until a future date; and (2) that ALDE 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 ALDE. Under the terms of 20 U.S.C. 1234f, that compliance agreement becomes effective on the date of these findings.

Dated: March 27, 2002.

Susan B. Neuman,

Assistant Secretary, Office of 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 Alabama Department of Education

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 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 Alabama Department of Education (ALDE) 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. Edward R. Richardson, Superintendent of ALDE, indicated ALDE'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 January 31, 2002, OESE conducted a public hearing regarding ALDE's ability to come into compliance with the title I standards and assessment requirements within three years. Based on testimony at that hearing, Dr. Joseph Morton, Deputy State Superintendent, determined that “Alabama was one of the states that did not meet the deadline for title I compliance with all rules and regulations.” The Deputy State Superintendent stated, “I am here today to testify that it can be done within a three-year span from the date of initiation of a signed compliance agreement.” The Deputy State Superintendent's written findings are attached to, and incorporated by reference into, this Agreement.

Pursuant to this Compliance Agreement under 20 U.S.C. 1234f, ALDE 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, ALDE must meet, and document that it has met, the following requirements:

1. Develop or select an academic assessment system that represents the full range of ALDE's academic content standards and academic achievement standards in at least reading/language arts and mathematics and is 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 ALDE's academic content and student achievement standards.

2. Provide evidence that the State assessment shall be used for purposes for which such assessments are valid and reliable, and be consistent with relevant, nationally recognized professional and technical standards for such assessments.

3. Provide evidence supporting the proposed Alabama Student Assessment Program that includes information on the financial capacity of Alabama to complete this system so that it meets the requirements of title I, including performance standards, alignment, technical quality, inclusion of all students, reporting, and use in the State's accountability system.

4. Provide evidence of performance standards having three performance levels, with cut scores for all components of the assessment system, and the process to be used to determine that these performance standards are aligned with content standards and performance descriptors for all components of the assessment system incorporated into your State's accountability system.

5. Provide evidence of participation rates for each grade assessed, each subject (reading and math), and, for SWD and LEP populations, the total enrollment, number assessed, and number exempted. The number assessed should be broken down by types of assessment accommodation (regular, standard accommodations, non-standard accommodations, and alternate) for all components of the State assessment system that you included in the accountability system.

6. Provide evidence of an approved comprehensive policy on assessment guidelines and accommodations for LEP students, clear guidance to LEAs and schools related to the use of language proficiency tests for the LEP team decisions on accommodations for assessments, and a plan for implementing the new LEP inclusion policies and for monitoring LEA compliance with those policies.

7. Provide evidence on the process used to incorporate data for SWD and LEP students into the assessment and accountability systems.

8. Provide evidence regarding the extent to which all components of the Alabama assessment program contribute to the alignment of the content and performance standards, a description of your State's approach for ensuring alignment; and information on the cognitive complexity of all of the Alabama assessments.

9. Provide evidence of a technical manual for the writing component and technical information on all the proposed components when they are available.

10. Provide evidence to show how Alabama will disaggregate its performance data in grade spans 3-5 and 6-9 by economically disadvantaged students versus non-economically disadvantaged, race/ethnicity, and LEP status at the State, LEA, and school levels and on how Alabama will disaggregate its performance data by all the required categories at the high school level.

11. Provide evidence on how your agency will provide individual student reports and State, LEA, and school profiles by student performance standards and how it will report and disseminate student performance information to the necessary stakeholders at the LEA and school levels.

During the period that this Compliance Agreement is in effect, ALDE 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 ALDE must meet to come into compliance with the title I standards and assessment requirements. ALDE 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.

In addition to all of the terms and conditions set forth above, ALDE agrees that its continued eligibility to receive title I, part A funds is predicated upon compliance with statutory and regulatory requirements of that program that have not been addressed by this Agreement, including the requirements of the No Child Left Behind Act of 2001.

If ALDE fails to comply with any of the terms and conditions of this Compliance Agreement, including the action steps, 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 Alabama Department of Education:

Dated: March 27, 2002.

Edward R. Richardson,

State Superintendent of Schools.

For the United States Department of Education:

Dated: March 27, 2002.

Susan B. Neuman,

Assistant Secretary, Office of Elementary and Secondary Education.

Date this compliance agreement becomes effective: April 8, 2002.

Expiration date of this agreement: April 8, 2005.

Footnotes

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.