03-14719. 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: [phone]).

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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//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 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:

• 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 (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:

• 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.
• In addition, DCPS must document the alignment of the assessments with DCPS' content and performance standards.
• Complete the creation of DCPS' performance standards by identifying the scores on the assessments that define each of DCPS' performance levels.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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. § 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 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.

Footnotes

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.