In accordance with section 1901(b) of the Elementary and Secondary
Education Act of 1965 (ESEA), as recently amended by the No Child Left
Behind Act of 2001, the Assistant Secretary for Elementary and Secondary
Education **is** convening a negotiating group, including Federal,
State, and local education administrators, parents, teachers, and
members of local boards of education, to participate in a negotiated
rulemaking process prior to publishing proposed regulations to implement
Part A of Title I of the ESEA. The regulations to be negotiated relate
to the statutory provisions involving academic content and student
achievement standards and academic assessments under Title I. Based on
advice and recommendations received, the Department has prepared the
following draft proposed regulations to serve as the basis for
discussion during the negotiations. Following the negotiated rulemaking
process, the Department will publish proposed regulations in the
*Federal Register* for public comment.

We are posting these draft proposed regulations for information
purposes. Please note that they are in draft form and subject to change
during the negotiated rulemaking process.

**Subpart A---Improving Basic Programs Operated by Local Educational
Agencies**

[Standards and Assessment]{.smallcaps}

**§200.1 [State responsibilities for developing challenging academic
standards]{.underline}.**

\(a\) [Academic standards in general]{.underline}. A State shall develop
challenging academic content and student academic achievement standards
that will be used by the State, its local educational agencies (LEAs),
and its schools to carry out this subpart. These academic standards
must---

\(1\) Be the same academic standards that the State applies to all
public schools and public schoolchildren in the State, including the
**schools and** children served under this subpart;

\(2\) Include the same knowledge, skills, and levels of achievement
expected of all children; and

\(3\) Include at least mathematics, reading/language arts, and,
beginning in the 2005-2006 school year, science, and may include other
subjects determined by the State. (b) [Academic content
standards]{.underline}. (1) The challenging academic content standards
required under paragraph (a) of this section must\--

\(i\) Specify what **all** children are expected to know and be able to
do;

\(ii\) Contain coherent and rigorous content; and

\(iii\) Encourage the teaching of advanced skills.

**(2) A State's academic content standards may cover more than one
grade.**

**(3) At the high school level, the academic content standards must
define the core knowledge that all high school students are expected to
achieve, independent of course titles or years completed.**

\(c\) [Academic achievement standards]{.underline}. (1) The challenging
student academic achievement standards required under paragraph (a) of
this section must\--

\(i\) Be aligned with the State\'s academic content standards; and

**(ii) Include the following components for each content area:**

\(A\) Achievement levels that describe---

([1]{.underline}) Two levels of high achievement\--proficient and
advanced\--that determine how well children are mastering the material
in the State\'s academic content standards; and

([2]{.underline}) A third level of achievement\--basic\--to provide
complete information about the progress of lower-achieving children
toward mastering the proficient and advanced levels of achievement.

**(B) Achievement descriptors that describe, in narrative format, the
competencies associated with each achievement level.**

**(C) "Cut scores" on an assessment that separate one level of
achievement from another, supported by student work.**

**(2) A State must develop academic achievement standards for every
grade and subject assessed, even if the State's academic content
standards cover more than one grade.**

> **(3) With respect to academic achievement standards in**

**science, a State must develop---**

**(i) Achievement levels and descriptors no later than the 2005-2006
school year; and**

**(ii) Cut scores after the State has developed its science assessments
but no later than the 2007-2008 school year.**

\(d\) [Subjects without standards]{.underline}. If students are served
under this subpart in subjects for which a State has not developed
academic standards, the State shall describe in its State plan a
strategy for ensuring that those students are taught the same knowledge
and skills and held to the same expectations in those subjects as are
all children.

(Authority: 20 U.S.C. )

**§200.2 [State responsibilities for assessment]{.underline}.**

(a)(1) Each State, in consultation with its LEAs, shall implement a
**system** of high-quality yearly student academic assessments that
includes, at a minimum, academic assessments in mathematics,
reading/language arts and, beginning in the 2007-08 school year,
science.

\(2\) The State may also measure the achievement of students in other
academic subjects in which the State has adopted challenging academic
content and student academic achievement standards.

\(b\) The **assessment system** required under this section must meet
the following requirements:

\(1\) Be the same **assessment system** used to measure the achievement
of all children in accordance with §200.3 or §200.4.

(2)(i) Be aligned with the State\'s challenging academic content and
student academic achievement standards; and

\(ii\) Provide coherent information about student attainment of those
standards.

(3)(i) Be used for purposes for which the **assessment system** is valid
and reliable; and

\(ii\) Be consistent with relevant, nationally recognized professional
and technical standards.

\(4\) **Be designed to be accessible and valid with respect to the
widest possible range of students, including students with disabilities
and students with limited English proficiency.**

\(5\) Be supported by evidence from test publishers or other relevant
sources that the assessment **system** is---

\(i\) Of adequate technical quality for each purpose required under the
Act; and

\(ii\) Consistent with the requirements of this section.

\(6\) Be administered in accordance with the timeline in §200.5.

\(7\) Involve multiple up-to-date measures of student academic
achievement, including measures that assess higher-order thinking skills
and understanding **of challenging content**.

\(8\) Objectively measure academic achievement, knowledge, and skills
without evaluating or assessing personal or family beliefs and
attitudes, **except that this provision does not preclude the use
of---**

**(i) Essay, extended-response, or short-answer test items; or**

**(ii) Items that require a student to analyze a passage of text or to
express opinions.**

\(9\) Provide for participation in the assessment **system** of all
students in the grades being assessed consistent with §200.6.

\(10\) Except as provided in §200.7, enable results to be disaggregated
within each State, LEA, and school by\--

\(i\) Gender;

\(ii\) Each major racial and ethnic group;

\(iii\) English proficiency status;

\(iv\) Migrant status;

\(v\) Students with disabilities as compared to students without
disabilities; and

\(vi\) Economically disadvantaged students as compared to students who
are not economically disadvantaged.

\(11\) Produce individual student reports consistent with §200.8(a).

\(12\) Enable itemized score analyses to be produced and reported to
LEAs and schools consistent with §200.8(b).

\(c\) Academic assessments that do not meet the requirements in
paragraph (b) of this section may be included in the assessment system
as additional measures. Those additional assessments---

\(1\) May not reduce the number, or change the identity, of schools that
would otherwise be subject to school improvement, corrective action, or
restructuring under section 1116 of the Act if those assessments were
not used; but

\(2\) May identify additional schools for school improvement, corrective
action, or restructuring. (Authority: 20 U.S.C. )

**§200.3 Designing State Academic Assessment Systems.**

**(a)(1) Provided its system meets the requirements in paragraph (a)(2)
of this section for each grade and subject assessed, a State may
include, in its academic assessment system under §200.2, either or
both\--**

**(i) Criterion-referenced assessments; and**

**(ii) Assessments that yield national norms, provided**

**that assessments referenced only against national norms---**

**(A) Are augmented with additional items to address fully and
accurately the depth and breadth of the State's academic content
standards**; **and**

**(B) Express student results in terms of the State's student academic
achievement standards.**

**(2) For each grade and subject assessed, a State's assessments
must\--**

**(i) Fully address the depth and breadth of the State's**

**academic content standards;**

**(ii) Be valid, reliable, and of high technical**

**quality; and**

**(iii) Express student results in terms of the State's**

**student academic achievement standards.**

**(b) A State that includes a combination of State assessments or a
combination of State and local assessments in its State system shall
demonstrate that the system has a rational and coherent design that\--**

**(1) Identifies the assessments to be used;**

**(2) Indicates the relative contribution of each assessment
towards---**

**(i) Ensuring full alignment with the State's academic content
standards; and**

**(ii) Determining the adequate yearly progress of each school and LEA;
and**

**(3) Is able to provide information regarding the progress of students
relative to the State's academic standards in order to inform
instruction.**

**(c) A State that includes local assessments in its**

**State system shall---**

**(1) Establish technical criteria to ensure that each local assessment
meets the requirements of paragraph (a)(2) of this section;**

**(2) Demonstrate that local assessments are of**

**equivalent content, rigor, and quality\--and that their results are of
concurrent validity with respect to groups of students described in
section 1111(b)(2)(c)(v)(II) of the Act\--to make a fair, rational, and
consistent determination of the annual progress of schools and LEAs
within the State;**

**(3) Review and approve each local assessment to ensure that it meets
or exceeds the State's technical criteria in paragraph (c)(1) and the
requirements in paragraph (c)(2) of this section; and**

**(4) Be able to aggregate, with confidence, data from**

**local assessments to determine whether the State has made adequate
yearly progress.**

**(d) A State's academic assessment system may rely exclusively on local
assessments only if it meets the requirements of §200.4.**

(Authority: 20 U.S.C. )

§**200.4 State law exception.**

\(a\) If a State provides satisfactory evidence to the Secretary that
neither the SEA nor any other State government official, agency, or
entity has sufficient authority under State law to adopt academic
content standards, student academic achievement standards, and academic
assessments applicable to all students enrolled in the State's public
schools, the State may meet the requirements under §§200.1---200.2 by\--

\(1\) Adopting academic standards and academic assessments that meet the
requirements of §§200.1-200.2 on a Statewide basis and limiting their
applicability to students served under this subpart; or

\(2\) Adopting and implementing policies that ensure that each LEA in
the State that receives funds under this subpart will adopt academic
standards and academic assessments aligned with those standards that---

\(i\) Meet the requirements in §§200.1-200.2; and

\(ii\) Are applicable to all students served by the LEA.

\(b\) **A State that qualifies under paragraph (a) of this section
shall---**

**(1) Establish technical criteria for evaluating whether each
LEA's---**

**(i) Academic content and student academic achievement standards meet
the requirements in §200.1; and**

**(ii) Academic assessments meet the requirements in §200.2,
particularly regarding validity and reliability, technical quality,
alignment with the LEA's academic standards, and inclusion of all
students in the grades assessed;**

**(2) Review and approve each LEA's academic standards and academic
assessments to ensure that they---**

**(i) Meet or exceed the State's technical criteria; and**

**(ii) Are of equivalent content, rigor, and quality---and that the
assessment results are of concurrent validity with respect to groups of
students described in section 1111(b)(2)(C)(v)(II) of the Act\--to make
a fair, rational, and consistent determination of the annual progress of
schools and LEAs within the State; and**

**(3) Be able to aggregate, with confidence, data from local assessments
to determine whether the State has made adequate yearly progress.**

(Authority: 20 U.S.C. )

**§200.5 Timeline for assessments.**

\(a\) [Reading/language arts and mathematics]{.underline}. (1) Through
no later than the 2004-2005 school year, a State must administer the
assessments required under §200.2 not less than one time during\--

\(i\) Grades 3 through 5;

\(ii\) Grades 6 through 9; and

\(iii\) Grades 10 through 12.

\(2\) Except as provided in paragraph (a)(3) of this section, beginning
no later than the 2005-2006 school year, a State must administer
**both** the reading/language arts and mathematics assessments required
under §200.2---

\(i\) In each of grades 3 through 8; and

\(ii\) At least once in grades 10 through 12.

\(3\) The Secretary may extend, for one additional year, the timeline in
paragraph (a)(2) of this section if a State demonstrates that---

\(i\) Full implementation is not possible due to exceptional or
uncontrollable circumstances such as---

\(A\) A natural disaster; or

\(B\) A precipitous and unforeseen decline in the financial resources of
the State; and

\(ii\) The State can complete implementation within the additional
one-year period.

\(b\) [Science]{.underline}. Beginning no later than the 2007-2008
school year, the assessments required under §200.2 must be administered
not less than one time during---

\(1\) Grades 3 through 5;

\(2\) Grades 6 through 9; and

\(3\) Grades 10 through 12.

**(c) [High school assessments]{.underline}. The high school assessments
reflected in these timelines must measure the standards that the State
expects all students at the high school level to meet, independent of
the grade in which those assessments are administered.**

\(d\) [Timing of results]{.underline}. A State shall promptly provide
the results of its assessments no later than before the beginning of the
next school year to LEAs, schools, and teachers in a manner that is
clear and easy to understand.

(Authority: 20 U.S.C. )

**§200.6 Inclusion of all students.**

A State's academic assessment system required under §200.2 must provide
for the participation of all students in the grades assessed.

\(a\) [Students with disabilities]{.underline}. (1) A State's academic
assessment system must provide for reasonable adaptations and
accommodations for students with disabilities necessary to measure the
academic achievement of those students relative to the State\'s
standards.

\(2\) Students with disabilities are students---

\(i\) Defined under section 602(3) of the Individuals with Disabilities
Education Act; or

**(ii) Covered under section 504 of the Rehabilitation Act of 1973**.

(3)(i) **The State's academic assessment system must include one or more
alternate assessments for those students with disabilities who cannot
participate in all or part of the regular State assessments, even with
reasonable adaptations and accommodations.**

**(ii) Alternate assessments must yield results in at least
reading/language arts, mathematics, and, beginning in the 2007-2008
school year, science.**

\(b\) [Limited English proficient students]{.underline}. A State shall
include limited English proficient students in its academic assessment
system as follows:

(1)(i) [In general]{.underline}. Consistent with paragraph (b)(2) of
this section, a State must assess limited English proficient students in
a valid and reliable manner that includes\--

\(A\) Reasonable accommodations; and

\(B\) To the extent practicable, assessments in the language and form
most likely to yield accurate and reliable information on what those
students know and can do to determine the students\' mastery of skills
in subjects other than English until the students have achieved English
language proficiency.

\(ii\) To meet this requirement, a State\--

\(A\) Shall make every effort to develop linguistically accessible
academic assessment measures; and

\(B\) May request assistance from the Secretary in the identification of
appropriate assessment measures.

\(2\) [Assessing reading/language arts in English]{.underline}. (i)
Unless an extension of time is warranted under paragraph (b)(2)(ii) of
this section, a State shall assess, using assessments written in
English, the achievement of any limited English proficient student in
meeting the State's reading/language arts academic standards if the
student has attended schools in the United States (excluding Puerto
Rico) for three or more consecutive years.

\(ii\) An LEA may continue, for no more than two additional consecutive
years, to assess a limited English proficient student under paragraph
(b)(1) of this section if the LEA determines, on a case-by-case
individual basis, that the student has not reached a level of English
language proficiency sufficient to yield valid and reliable information
on what the student knows and can do on reading/language arts
assessments written in English.

**(iii) The requirement in this subparagraph does not permit a
three-year exemption from participating in the State assessment system
for limited English proficient students.**

\(3\) [Assessing English proficiency]{.underline}. (i) Unless a State
receives an extension under paragraph (b)(3)(ii) of this section,
beginning no later than the 2002-2003 school year, the State shall
require each LEA to assess annually the English proficiency, including
reading, writing, speaking and listening skills, of all students with
limited English proficiency in schools in the LEA.

\(ii\) The Secretary may extend, for one additional year, the deadline
in paragraph (b)(3)(i) of this section if the State demonstrates that---

\(A\) Full implementation is not possible due to exceptional or
uncontrollable circumstances such as---

([1]{.underline}) A natural disaster; or

([2]{.underline}) A precipitous and unforeseen decline in the financial
resources of the State; and

\(B\) The State can complete implementation within the additional
one-year period.

\(c\) **[Migrant and other mobile children]{.underline}. A State's
academic assessment system must include migrant children, as defined in
Title I, Part C, of the Act, and other mobile children in the grades
assessed, even if those students are not included for accountability
purposes under §200.\_\_ \[not in school or LEA for full academic
year\].**

(Authority: 20 U.S.C. )

**§200.7 Disaggregation of data.**

\(a\) [Statistically reliable information]{.underline}. (1) A State may
not use disaggregated data for one or more subgroups under §200.2(b)(10)
to report achievement results under section 1111(h) of the Act \[report
cards\] or to identify schools in need of improvement, corrective
action, or restructuring under section 1116 of the Act if the number of
students in those subgroups is insufficient to yield statistically
reliable information.

**(2) Based on sound statistical methodology, a State shall determine
the minimum number of students sufficient to yield statistically
reliable information for each purpose for which disaggregated data are
used.**

\(b\) [Personally identifiable information]{.underline}. (1) A State may
not use disaggregated data for one or more subgroups under §200.2(b)(10)
to report achievement results under section 1111(h) of the Act \[report
cards\] or to identify schools in need of improvement, corrective
action, or restructuring under section 1116 of the Act if the results
would reveal personally identifiable information about an individual
student.

**(2) To determine whether disaggregated results would reveal personally
identifiable information about an individual student, a State shall
apply the requirements under section 444(b) of the General Education
Provisions Act (the Family Educational Rights and Privacy Act of
1974).**

**(3) A State shall make every effort to maximize the use of
disaggregated data while protecting the privacy of individual
students.**

(Authority: 20 U.S.C. )

**§200.8 Assessment reports.**

\(a\) [Student reports]{.underline}. A State's academic assessment
system must produce individual student interpretive, descriptive, and
diagnostic reports that---

\(1\) Include information regarding achievement on the academic
assessments under §200.2 **measured against the State's student academic
achievement standards**;

\(2\) Allow parents, teachers, and principals to understand and address
the specific academic needs of students; and

\(3\) Are provided to parents, teachers, and principals---

\(i\) As soon as is practicable after the assessment is given;

\(ii\) In an understandable and uniform format; and

\(iii\) To the extent practicable, in a language that parents can
understand.

\(b\) [Itemized score analyses]{.underline}. (1) A State's academic
assessment system must produce and report to LEAs and schools itemized
score analyses so that parents, teachers, principals, and administrators
can interpret and address the specific academic needs of students.

**(2) The itemized score analyses required by this paragraph do not
require the release of information on each test item.**

(Authority: 20 U.S.C. )

**§200.9 Deferral of assessments.**

\(a\) A State may defer the commencement or suspend the administration
of the assessments required under §200.2 that were not required prior to
the date of enactment of this Act for one year for each year for which
the amount appropriated for State assessment grants under section
6204(c) of the Act is less than the trigger amount in section
1111(b)(3)(D) of the Act.

\(b\) A State may not cease the development of the assessments referred
to in paragraph (a) of this section even if sufficient funds are not
appropriated under section 6204(c) of the Act.

(Authority: 20 U.S.C. )

**§200.10 Applicability of a State's academic assessments to private
schools.**

\(a\) Nothing in §200.2 requires a private school to participate in a
State's academic assessment system.

\(b\) If an LEA provides services to eligible private school students
this subpart, the LEA must---

\(1\) Assess the effectiveness of those services, **using the State's
academic assessment system under §200.2 or other academic assessments,
as appropriate;** and

\(2\) Consult with appropriate private school officials regarding how
services to eligible private school students will be academically
assessed and how the results of that assessment will be used to improve
those services.

(Authority: 20 U.S.C. )