03-4076. Idaho State 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 29, 2002, the Assistant Secretary for Elementary and Secondary Education Dr. Susan B. Neuman entered into a compliance agreement with the Idaho State Department of Education (ISDE). 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. Zollie Stevenson, Jr., U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., room 3W200, 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.

ISDE submitted, and the Department approved, evidence that it has content standards in at least reading/language arts and mathematics. In October 2000, ISDE 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 Tom Corwin concluded that ISDE'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 October 16, 2001 to Dr. Marilyn L. Howard, State Superintendent of Public Instruction for Idaho, the Assistant Secretary Dr. Susan B. Neuman notified the ISDE 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 ISDE 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, ISDE 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, ISDE 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 the ISDE 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 ISDE 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 the ISDE's progress in meeting the terms of the compliance agreement. The Idaho State Superintendent of Public Instruction, Dr. Marilyn L. Howard, signed the agreement on March 22, 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 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

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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: February 13, 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 U.S.C. 1234c and 1234f, that the Idaho State Department of Education (ISDE) 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 the ISDE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that ISDE 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 the ISDE 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, the ISDE 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.
• 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 the ISDE is appropriate, the Assistant Secretary must first determine whether compliance by the ISDE 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 the ISDE will be able, within a period of up to three years, to come into compliance with the Title I requirements. Not only must the ISDE 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 the ISED would not be appropriate.

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

In October 2000, the ISDE 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 Thomas Corwin concluded that ISDE's proposed final assessment system did not meet a number of the Title I requirements. Specifically, the Acting Deputy Assistant Secretary determined that the ISDE must do the following:

• Provide information on Idaho's proposed standards based assessment system.
• Provide evidence that its accountability system will allow the results of the Idaho final assessment system, including local assessments where applicable, to be the primary indicators of adequate yearly progress.
• Provide evidence that performance standards have been developed and implemented and that they are aligned with Idaho's content standards and the Idaho assessment system that is being developed.
• Provide clear and concise information on the enrollment of limited English proficient students and students with disabilities in the State at the assessed grade levels and provide information on the number of limited English proficient students and students with disabilities who take the standard form of the Idaho assessments and the Idaho assessments with accommodations, and the number of those students exempted or excluded from the Idaho assessment program.
• Provide a copy of its inclusion policy for limited English proficient students and provide documentation that the State Board of Education has approved it. Included in that policy should be information on accommodations for limited English proficient students. A plan for implementing the new inclusion policies and for monitoring LEA compliance with the new inclusion policies when they are approved should also be provided.
• Submit information on the technical quality of the Idaho alternate assessment for students with disabilities as well as information that indicates the extent to which accommodations associated with the norm-referenced tests and State-developed assessments yield valid results for students with disabilities, as well as information regarding any accommodations that are planned for the Direct Mathematics and Writing assessments and the technical quality of those accommodated assessments.
• Document how it will incorporate performance data for all Idaho students into its reporting of results for assessment and accountability purposes.
• Provide evidence regarding the extent to which the components of the Idaho Assessment Program are aligned with Idaho standards.
• Provide technical information on each of the components of the Idaho Assessment Program and information on how Idaho ensures the fairness of its assessments for all students.
• Provide evidence on how the multiple measures that have been incorporated in the Idaho Assessment Program affect the validity, reliability, and fairness of those assessments.
• Disaggregate student performance by gender, race/ethnicity, migrant status, disability (versus non-disability), economic disadvantage (versus non-disadvantaged), and limited English proficiency status at the LEA and school levels. In addition, Idaho must add economic disadvantage to the categories that are currently being disaggregated at the State level.
• Define for LEAs which students are to be included in determining adequate yearly progress (AYP) for schools and LEAs.
• Provide a plan for evaluating the AYP of its small schools and K-3 schools.

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

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

D. The ISDE 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, the ISDE presented evidence of its commitment and capability to come into compliance with the Title I standards and assessment requirements within three years. For example, Idaho entered into a contract to develop reading and mathematics assessments within one year at grades 4, 8 and 10. Idaho has established a process for developing performance descriptors and to define performance levels for its assessment system with broad based involvement of Idaho citizens and has established a timeline for approving the performance descriptors and performance levels. Idaho has also received approval from the Department for its academic content standards.

Finally, the ISDE has developed a comprehensive action plan, incorporated into the compliance agreement, that sets out a very specific schedule that the ISDE has agreed to meet during the next three years for attaining compliance with the Title I standards and assessment requirements. As a result, the ISDE 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 the ISDE 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 the ISDE must follow. These provisions will allow the Assistant Secretary to ascertain promptly whether the ISDE 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 the ISDE to comply with the terms and conditions of the compliance agreement, it is possible for the ISDE 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 the ISDE with the standards and assessment requirements of Title I is not feasible until a future date; and (2) that the ISDE 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 the ISDE. 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 Idaho State Department of Education

Introduction

Title I of the Elementary and Secondary Education Act of 1965 (Title I) required each State, along with 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 Idaho State Department of Education (SDE) 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. Marilyn Howard, Idaho's Superintendent of Public Instruction, indicated the Idaho SDE'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 13, 2001, OESE conducted a public hearing regarding Idaho SDE'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 Idaho SDE 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 Idaho SDE 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 V.S.C. sec. 1234f, Idaho SDE 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, Idaho SDE must ensure and document that it will have met the following requirements:

1. Provide information on Idaho's proposed standards based assessment system. Provide a copy of the development contract for the new assessment system.

2. Provide evidence that performance standards have been developed and implemented and that they are aligned with Idaho's content standards.

3. Provide a copy of the Limited English Proficient student (LEP) inclusion policy and documentation of State approval. Include in the LEP policy information on accommodations for LEP students. Provide a plan for implementing the new LEP inclusion policies and for monitoring LEA compliance with the new inclusion policies when they are approved. Provide clear and concise information on the enrollment of LEP students and students with disabilities (SWD) in the state at the assessed grade levels and provide information on the number of LEP students and SWDs who take the standard form of the Idaho assessments and the Idaho assessments with accommodations, and the number of those students excluded from the Idaho assessment program.

4. Provide evidence that the components of the Idaho Assessment Program are aligned with Idaho standards. Provide evidence that Idaho assessments are cognitively complex. Identify gaps and weaknesses of the assessment system. Provide evidence on how the multiple measures incorporated in the Idaho Assessment Program affect the validity, reliability, and fairness of those assessments.

5. Provide technical information on each of the components of the Idaho Assessment Program. Provide information on how Idaho will ensure the fairness of its assessments for all students. Submit information on the technical quality of the Idaho alternate assessment for SWD as well as information that indicates the extent to which accommodations yield valid results for SWD.

6. Provide evidence that student performance will be disaggregated by gender, race/ethnicity, migrant status, disability (versus non-disability), economic disadvantage (versus non-disadvantaged), and limited English proficiency status at the school, district, and state levels.

7. Demonstrate that the Idaho SDE has developed or adopted a set of high-quality, yearly student assessments that will be used as the primary means of determining the yearly performance of each local educational agency and school served under Title I, Part A. Provide evidence that the accountability system will allow the results of the Idaho final assessment system to be the primary indicators of adequate yearly progress. Document the incorporation of performance data for SWD and LEP students into the reporting of results for assessment and accountability purposes.

8. Provide a plan for evaluating the adequate yearly progress of small schools and K-2 schools.

9. Describe plans to comply with the No Child Left Behind Act of 200 I assessment and accountability requirements.

During the period that this Compliance Agreement is in effect, Idaho SDE 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 below action steps Idaho SDE must meet to come into compliance with its Title I obligations.

Compliance Agreement, April 2002

U.S. Dept. of Education/ldaho State Dept. of Education

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, Idaho 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 the Idaho SDE fails to comply with any of the terms and conditions of this Compliance Agreement, including the action steps below, the U.S. Department of Education 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 Idaho's State Department of Education:

Dated: March 22, 2002.

Dr. Marilyn Howard,

Superintendent.

For the United States Department of Education:

Dated: March 22, 2002.

Susan B. Neuman,

Assistant Secretary, Office of Elementary and Secondary Education.

Date this Compliance Agreement becomes effective (Date of Assistant Secretary's Written Decision and Findings): March .21-, 2002.

Expiration Date of this Agreement: March -.29—, 2005.

Compliance Agreement, April 2002

U.S. Dept. of Education/Idaho State Dept. of Education

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.