**Position Statement**

**North Carolina School Superintendents Association**

**Proposed Rulemaking on No Child Left Behind**

**May 18, 2008**

The U.S. Department of Education (USED) has issued a broad Notice of
Proposed Rulemaking (NPRM) on several areas within No Child Left Behind.
This wide reaching set of proposed regulations would have a dramatically
negative impact on every school district in North Carolina. The North
Carolina School Superintendents Association (NCSSA) and the American
Association of School Administrators (AASA) firmly believe that these
regulations overstep the administrative authority of USED and are being
implemented too quickly with some of the regulations taking effect at
the start of the 2008-09 school year. Comments given below were
initially developed by AASA. NCSSA agrees with these comments and has
made adjustments to reflect dual agreement by both organizations.

The proposed regulations for Title I of the Elementary and Secondary
Education Act, ESEA, cover three broad topics: assessment and
scorekeeping, high school graduation and the punishments for missing
AYP. For purposes of discussion they are categorized into one of these
areas.

**I. Changing the rules for assessments & scorekeeping**

***Assessing higher-order thinking skills through multiple measures.
(Regulation 200.2)***

NCSSA and AASA comment**:** Multiple measures and higher order thinking
skills are clearly included in the description of assessments in the
state plan in section 1111 (b) of ESEA. Although multiple measures of
achievement and the testing of more complex operations were in NCLB,
neither topic was thought important enough to be negotiated as part of
the original state accountability plans. When the law was being
rewritten in 2001, every leading psychometrican called for the inclusion
of multiple measures of student achievement and for the testing of more
than the low level "bubble in" concepts commonly found in state wide
standardized tests.

NCSSA and AASA find the language in the proposed regulations too
restrictive in the following ways:

1\. USED offers a limited view of allowable assessments. Only
standardized tests are permitted by the regulation when there are other,
more accurate, means of assessment, including portfolios and curriculum
embedded assessments.

2\. High quality local assessments should be allowable as multiple
measures in the state accountability plan. Only statewide tests are
contemplated by the proposed regulations even though many districts have
tests that are aligned with state standards and are more accurate than
the statewide tests in terms of validity, reliability and instructional

usefulness. It is these assessments that actually work to close the
achievement gap by

giving instructionally useful information to teachers and principals.

3\. Adding higher order thinking skills in the form of different types
of questions on the statewide tests adds complexity and time to test
scoring, which will delay the sharing of results and impact the proposed
14 day rule. If it takes longer to score state tests, many states will
force earlier testing thus reducing test scores because of shortened

instructional time. The combination of ideas will create a predictable
perfect storm for

schools and school districts leading more schools into identification
and improvement.

4\. Because this language was in the law that was signed in 2002, what
took so long for USED to say that multiple assessments were in order?
Why did original negotiations with states not stress multiple
assessments or other measures?

5\. Why is the term formative assessment never used when that is clearly
one type of assessment and one that is widely used at the local level?

6\. What happened to the language that was meant to keep states
continually improving their assessments?

***Permitting the inclusion of measures of individual student academic
growth in a State\'s definition of AYP. (Regulation 200.20)***

NCSSA and AASA comment: This is a helpful change in federal policy.
Permitting formative and adaptive assessments would lead to more
accurate assessments and more instructionally useful assessments. The
move to assessments that start with individual scores is long overdue.
In fact, USED made the state of Maryland abandon its highly rated
assessments because the results were focused on individuals not groups.
USED's permission to use value added calculations of scores of current
state tests is a small step in the right direction. NCSSA and AASA still
find the language regarding assessments for individuals too restrictive
and not consistent with the cutting edge of assessing student
achievement because:

1\. Tests designed to find group or subgroup scores (including all of
the current state tests) are weak indicators of individual achievement,
and this is especially true for students who score at the very bottom of
the range. All standardized tests are somewhat

inaccurate for measuring individuals. The number of items on tests is
limited, leaving

few items that would indicate what students at the very bottom know and
are able to do.

As a result the standard error of measurement would be so high as to
render the results

meaningless for instruction and too inaccurate to measure individual
growth.

2\. The terms formative assessment and adaptive assessment are not
mentioned in the proposed regulations, which brings into question the
clarity, instructional usefulness

and accuracy of the scores, particularly for students who are two or
more standard

deviations from the mean.

***Increasing subgroup accountability. (Regulation 200.7)***

NCSSA and AASA comment: The proposed changes in "n" sizes for evaluation
of schools and school districts are unclear, wrongheaded conceptually
and clearly violate the spirit of Section 1111 of Title I of ESEA
because:

1\. The subgroup size language in the NPRM is vague, e.g., *"Ensure
that, to the maximum extent practicable, all student groups in*
*200.13(b)(7)(ii) are included particularly at the school level, for
purposes* *of making accountability determinations."*

More importantly, the conclusion that millions of minority and
low-income students

were being improperly excluded by state "n" sizes was based not on peer
reviewed

research by reputable scholars, but instead on a report by an advocacy
group based in

Washington, D.C. and a review of some states by the Associated Press.
Research by

Kane and Steiger, in the year prior to last revision of ESEA that found
that 67 students

were needed to make minimal conclusions about group achievement. That
research

was ignored by Congress and then USED, when states with only a handful
of

exceptions were forced to use 30 or 40 students for minimum "n" sizes.

2\. The quality of statewide tests does not change the math regarding
sample sizes needed to make accurate evaluations of schools and school
districts. Small "n" sizes require large confidence intervals because
they are so inaccurate, as USED recognized in when approving state
accountability plans.

3\. The statutory provision on group size is very clear---state reports
of AYP will

disaggregate data ,with one exception: Sec 1111 (b)(2)(C)(v)(II),
"...*disaggregation of data under subclause (II) shall not be required
in a* *case in which the number of students in a category is
insufficient to yield* *statistically reliable information or the
results would reveal personally* *identifiable information about an
individual student*." Changing this section of the law could have a
profound impact on small schools, allowing their results to be impacted
by just one or two students.

***Ensuring that States and local educational agencies (LEAs) include
State data from the National Assessment of Educational Progress (NAEP)
on State and local report cards. (Regulation 200.11)***

NCSSA and AASA comment: This creates an unwise apples-to-oranges
comparison using data from completely different types of tests, built
for completely different purposes. USED has yet to provide any guidance
or explanation of how to interpret NAEP results in comparison to state
assessments. Inclusion of the explanation of differences will not
mitigate the misinterpretation of results, because:

1\. NAEP is a matrix sampling of items from the entirety of a subject
area while state tests are based on a list of things the state has
determined are important for children in that state to know.

2\. NAEP test takers all take a different test and results are weighted
based on an

evaluation of the difficulty of each item while state test takers all
take the same test and

evaluations are based on how all students do on items exploring
particular items on the

list of things students are expected to know.

3\. NAEP scores are scaled on a 600 point scale in a way that gauges
trends over time while state test scores are snap shots not meant to
provide trend lines for groups of

students over time. USED's current regulations are permitting a type of
summarizing of

state scores called value added that will yield year to year growth
estimations. Until all

states have that in place, it will continue to be an unfair comparison.

***Creating a National Technical Advisory Council to advise the
Secretary on complex issues related to State assessment and
accountability systems. (Regulations 200.22)***

NCSSA and AASA comment: A blue ribbon technical advisory council is
probably a good idea as long as it features widely respected scholars
and practitioners and is non-partisan. A repeat of the misinterpretation
of the National Reading Panel report would mislead the public and
Congress about results and further damage the reputation of USED. Thus
the appointments ought to be made by a new administration and need to
include input from professional groups concerned with measuring student
achievement such as American Educational Research Association. These
appointments should be balanced with educators who are familiar with
implementing policy in local school districts.

**II. Adding high schools to federal oversight**

***Establishing a uniform and accurate method that States must use to
calculate high school graduation rates and setting high school
graduation rate goals for AYP purposes. (Regulation 200.19)***

NCSSA and AASA comment: Improving and standardizing the way each state
calculates its graduation rate is needed to help parents, communities
and state policy makers understand how many students are completing high
school. The statute clearly directed the use of high school graduation
in the accountability for results in Title I of ESEA. Section 1111
(b)(C)(2)(vi) states that *"in accordance with subparagraph (D),
includes graduation rates for* *public secondary school students
(defined as the percentage of students* *who graduate from secondary
school with a regular diploma in the* *standard number of years)..."*
However, nothing in Section 1111 leads to the conclusion that U.S.
Secretary of Education ought to dictate how each state should calculate
it graduation rate. Further, there is nothing in the U.S. Department of
Education Organization Act that leads to the conclusion that the
Secretary was intended to dictate educational policy to the states.

The proposed regulations also place an enormous burden on local school
districts, who would be required to confirm that a student who left
their district has enrolled in another education institution. This will
take a lot of administrative effort. In addition, not all states are
good at tracking this within state, let alone between states. The
proposed national calculation requires tracking leaving students to
their new schools and assumes that the new school will respond to the
information request, even if they are in another state or country. The
tracking requires new data systems and adds administrative costs to
handle the communications and follow up when required. The method of
estimating graduation rates recommended by the Secretary, based largely
on the plan adopted by many governors, has several problems, including:

1\. All students with a disability who have an IEP are eligible for
services until they graduate or turn 22. This is in direct conflict with
the 'on-time' 4-year high school

standard. A simple exception for some students with disabilities will
not resolve this

conflict.

2\. Every method of calculating graduation rates, including the one
chosen by Secretary Spellings, is based on estimates rather than hard
incontrovertible counts.

3\. The proposed national calculation assumes a standard 4-year high
school period, which is simply an artifact of the past that has not been
reconsidered since it was made common. Some students take longer to
finish and neither those students nor their high schools should be
stigmatized if the time needed to graduate exceeds four years.

4\. The proposed national calculation estimates graduation by comparing
each class' starting and ending enrollment, without accounting for the
9th grade bulge reported in nearly all high schools.

5\. Some families move without any notification to any official group.
This is especially true of children of illegal immigrants. In those
instances the schools cannot follow the students and will be stigmatized
when required to report those students as drop outs when that may or may
not be the case.

6\. Rapid sustained large enrollment increases or decreases will either
mask or exaggerate graduation rates.

7\. The Secretary's proposal fails to take into account the different
circumstances that can prevent a four-year graduation timeline.
Specifically, the calculation does not account for students with
necessary medical leave, alternative education programs, drop out
recovery programs or students receiving their GED. All of these will
leave a worse

picture of school district graduation rates if these situations are not
taken into account.

***Including disaggregated graduation rates in AYP calculations.
(Regulation 200.19)***

NCSSA and AASA comment: Disaggregating results for high school
graduation is a good idea similar to the disaggregation of test results.
We caution that adding a new variable to the current scorekeeping matrix
would expand the matrix from 36 cells to 45 cells, thus adding 9 new
ways for schools to fail to make AYP. Adding a faulty definition of high
school graduation with an unrealistic goal, like 100% of students
achieving proficiency by 2013-14, will further exaggerate failure.

**III. Changing the punishments for missing AYP**

***Identifying schools and LEAs for improvement.(Regulation 200.32)***

NCSSA and AASA comment: The purpose of evaluation is to identify
problems and potential solutions. Focusing on groups of students who
miss AYP two consecutive years in a particular subject is good use of
data driven decision making, drilling down to a specific area of
concern.

1\. Getting the results from a second year of assessment is important
because the standard error of measurement compounded by differences in
cohorts of students in a school makes a single data point unreliable.

2\. Leaving the evaluation of schools to the original USED design failed
to differentiate between generalized success and total failure. USED
recognized that is the recent guidance regarding differentiated
consequences.

3\. Finally, the requirement that the number and percentage of student
excluded from school level accountability is simply one more misguided
attempt by Washington to discredit local schools.

***Ensuring that parents receive the information they need to exercise
their public school choice and SES options. (Regulation 200.37)***

NCSSA and AASA comment: The proposed language of 200.37 (iv) requiring
parental notification, *"no later than 14 days before the start of the
school year...,"* is in conflict with the words of the statute *"(i) IN
GENERAL- In the case of a school identified for school improvement under
this paragraph, the local educational agency shall,*

*not later than the first day of the school year following such
identification, provide all students enrolled in the school with the
option to transfer to another public school served by the local
educational agency, which may include a public charter school, that has
not been identified for school improvement under this paragraph, unless
such an option is prohibited by State law."* The 14 day rule is a bad
idea---beyond the obvious conflict with the clear statutory provision
giving schools until the first day of school---because:

1\. As the NPRM recognizes, most states do not receive their spring test
results in time to allow close, accurate examination of data that
ensures children and parents are not given incorrect information, as was
the case in Minnesota and New York in recent years. Few states were even
able to supply the testing information prior to the start of the school

year. Beyond releasing the first round of test scores and therefore
school identifications,

states must give districts time to correct and possibly appeal that data
before it is made

final.

2\. Which student will enroll in a given school is unknown until they
arrive. While most students in most schools predictably reenroll every
year they are scheduled to attend that school, things change and often
at the last moment. Schools cannot be held responsible for changing
parental decisions regarding where they live or where children will be
enrolled in school. Additionally, enrollment is most unstable in high
poverty schools, those most likely to be served by Title I.

***Providing information to the public about participation in SES and
public school choice. (Regulation 200.39)***

NCSSA and AASA comment: The proposed regulations require multiple new
sources of information and new calculations which will add costs for
gathering, summarizing and distributing information to the public, not
just public school parents and their children. Such new requirements add
administrative costs and staff within local school districts that will
add no positive value in the operation of Title I programs. Each dollar
local districts are forced to spend on administration is a dollar away
from instruction of students. We recommend that the new activities be
fully paid for before the regulations are made effective.

1\. Reporting the number of students who are eligible for SES or choice
and the percentage of students who participate may be misleading because
the participation decisions are personal and not available for
reporting.

2\. Providing the public a list of SES providers and their locations or
choice locations will be meaningless because the public is not involved
in the participation decisions. This information does not lend itself to
being put into a context, any more than a list of yellow page listings.

***Strengthening the requirements for schools in restructuring.
(Regulation 200.43)***

NCSSA and AASA comment: USED should rethink this particular issue,
institute a two year moratorium on further punishments and develop a
realistic plan to build capacity to improve schools and school districts
that have missed making AYP for several years.

. Extreme measures such as firing the entire teaching and administrative
staff of schools may sound good in Washington but has not worked on a
large scale because there is not a long line of ready reserves who want
to teach in high poverty schools. There is even a greater shortage of
principals who bear the brunt of the problems of organizing

teaching environments in high poverty schools.

2\. The charter school option rings hollow. USED data from NAEP scores
found that charter schools have not attained better results with
low-income children than regular

public schools, except where attrition is a major factor in reducing the
student body to a

core of highly motivated students and parents.

3\. The private contractor option also rings hollow: data from several
cities that engaged private contractors to operate schools does not show
improved test scores. Private contractors do manage to take profits from
the scarce funds for public schools rather than spending it on
instruction.

4\. The language of 200.43 of the regulations, *"makes fundamental
reforms,"* and *"is significantly more rigorous and comprehensive that
the corrective action that the LEA implemented under 200.42."* is too
vague to be instructive, and opens schools to every educational silver
bullet. The result will be misdirection and litigation based on
different definitions of 'more rigorous' and 'fundamental reforms'.

***Requiring States to be more transparent about how they monitor LEAs\'
implementation of SES and strengthening the evidence that States must
consider when approving and monitoring SES providers. (Regulation
200.47)***

NCSSA and AASA comment: All of the new information required of states
will result in increased administrative time and effort. The regulations
do not provide for the associated staff costs and appear very
inexpensive to USED. We recommend that the information needs as
identified by USED be fully paid for by Congress at both the state and
local level before the regulations are made effective.

***Using SES and school choice funds for parent outreach. (Regulation
200.48)***

NCSSA and AASA comment: The provisions of the NPRM regarding funding for
choice related transportation and supplemental service, 200.48, are ill
advised and well beyond congressional intent in the 2001 reauthorization
of Title I of ESEA, and thus should be eliminated from the NPRM.

1\. The NPRM correctly holds that Section 1116 (e) (1) requires
supplemental educational services. However, the statute does not require
states to do the additional oversight that will almost certainly fall to
local school districts.

2\. The notion that states must conduct surveys of parents who elect to
participate in SES is not in the statute and is another task that would
certainly fall to school districts to actually conduct, without
compensation.

3\. Finally, the proposal that school districts set aside 0.2 percent of
their Title I grant for parental outreach that is not required in the
statute thus must be must be dropped. This is yet another example of
tying the hands of local school districts in their expenditure of their
dollars.

***Maximizing use of funds for public school choice-related
transportation and SES. (Regulation 200.48)***

NCSSA and AASA comment: The provisions of the NPRM related to locking up
20 percent of a school district's Title I grant for the period of the
grant for choice and SES---even if the funds are not
expended---mistakenly assumes that parents are not choosing SES and
choice because the school districts do not want to pay for it. The
assumption regarding parental motivation is simply incorrect and would
lead to the waste of millions of dollars appropriated for Title I when
those funds go back to the treasury. The proposed changes in section
200.50 ought to be eliminated. They add additional hoops for school
districts to jump that will hinder their ability to directly serve
students.