August 1, 2008

Dr. Patti Harrington

State Superintendent of Public Instruction

Utah State Department of Education\
P.O. Box 144200\
Salt Lake City, UT 84114-4200

Dear Superintendent Harrington:

I am writing in response to your agency's request for a flexibility
agreement allowing districts to provide supplemental educational
services (SES) under Title I of the Elementary and Secondary Education
Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001
(NCLB), to students attending Title I schools in the first year of
school improvement. I am granting your request to participate in this
pilot in the 2008-2009 school year. Accordingly, I am entering into this
flexibility agreement with Utah under section 9401 of the ESEA.

You have requested that all school districts within Utah be allowed to
offer SES in lieu of public school choice to eligible students in Title
I schools in the first year of school improvement under NCLB, thereby
reversing the order of the interventions outlined in sections
1116(b)(1)(E) and 1116(b)(5)(B) of the ESEA. The districts would offer
both SES and public school choice to eligible students enrolled in any
school that is in the second year of school improvement, in corrective
action, or in restructuring.

The Department has determined that Utah meets the three criteria for
participation in the pilot: (1) timely notification of adequate yearly
progress results; (2) a state SES evaluation in progress; and (3) a
state assessment system for which the Department has granted Full
Approval. However, it is not clear that the state has conducted, as part
of its SES evaluation, a rigorous analysis of the impacts of SES on
student achievement. Thus, as a condition on Utah's participation in
this pilot, in addition to the conditions outlined below, I am requiring
Utah to modify its SES evaluation to include such an analysis.

Approval of this flexibility agreement is conditioned on Utah's
fulfilling the requirements detailed in the enclosure to this letter.
Specifically, in addition to the requirement discussed above, Utah must
ensure in the participating districts: an increase from prior years in
the number of students participating in SES and public school choice;
parent access to SES providers; timely parental notification; multiple
or continuous enrollment periods; and a level playing field for all
providers. Utah must also supply SES and public school choice data to
the Department via the Education Data Exchange Network (EDEN) and must
submit an interim report to the Department on the implementation of this
pilot by January 1, 2009, and a final report by June 30, 2009.

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In addition, as required by section 9401(b)(3)(B) of the ESEA, within 30
days of the date of this letter, each participating district must
provide notice and information to the public about its participation in
the pilot in the manner in which it customarily provides similar notice
to the public. Each district must also submit a report under section
9401(e)(1) of the ESEA to the Utah State Department of Education at the
end of the 2008-2009 school year that: describes the district's
provision of SES in Title I schools in the first year of school
improvement; describes how those schools continued to provide Title I
services to eligible students during that year; and evaluates the
progress of the district and schools in increasing the quality of
instruction and improving the academic achievement of students. Your
agency should then submit this information to the Department as part of
the report due June 30, 2009.

This flexibility agreement applies to the provision of SES in Title I
schools during the 2008-2009 school year and is subject to a review at
the end of that school year to determine if the flexibility will be
continued.

SES is an important component of NCLB, and we look forward to working
with you to ensure that students in your districts are obtaining quality
services and succeeding in the classroom.

> Sincerely,
>
> Margaret Spellings

Enclosure

cc: Karl Wilson

**Conditions of Flexibility Agreement for the 2008-2009 School Year**

**UTAH STATE DEPARTMENT OF EDUCATION**

The state and its local educational agencies (LEAs) must meet the
following conditions:

***Goals***

-   [Increased student participation in SES and public school
    choice.]{.underline} Participating LEAs must increase the number of
    students receiving SES and public school choice under NCLB from
    prior years.

***Principles***

-   [Availability of SES providers.]{.underline} The state must:

    -   Maintain a comprehensive list of approved SES providers that may
        include nonprofit, for-profit, faith- and community-based, and
        online providers;

    -   Ensure that there are at least two providers available in each
        participating LEA from which parents may choose.

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-   [Effective parent notification and outreach.]{.underline} The state
    must ensure that participating LEAs:

    -   Provide timely, clear, accurate notice to parents about the
        identification of their child's school as in need of improvement
        and their parental involvement opportunities, including the
        availability of the SES and public school choice options, in
        simple language that parents can understand;

    -   Notify parents of eligible students about SES prior to the start
        of the 2008-2009 school year, or within the first few weeks of
        the school year, and provide SES shortly thereafter;

    -   Offer continuous enrollment in SES or multiple SES enrollment
        periods throughout the 2008-2009 school year until each pilot
        LEA spends the 20 percent required by Title I or until all
        students who request SES and public school choice are served.

-   [Level playing field for all providers.]{.underline} The state must
    ensure that participating LEAs:

    -   Provide fair and equitable treatment of non-LEA providers by
        giving providers access to school facilities at a reasonable
        price and dividing space among providers in a fair manner;

    -   Allow providers to market their services to parents and work
        with community and business partners to reach out to parents and
        provide them with information on their options.

-   [Effective provider evaluation.]{.underline} The state must modify
    its evaluation of the quality and effectiveness of SES providers to
    include a rigorous analysis of the impacts of SES on student
    achievement. The state must provide evidence of this modification to
    the Department in its report due January 1, 2009. (See below.)

-   [Reporting.]{.underline} The state must:

    -   Submit complete and accurate public school choice and SES data
        for all its LEAs to the Department via the Education Data
        Exchange Network (EDEN) for the 2007-2008 school year by the end
        of October 2008, and for the 2008-2009 school year, by the end
        of October 2009;

    -   Submit reports to the Department on how the conditions of the
        flexibility agreement were met, including an explanation of
        trends in participation in SES and public school choice within
        the participating LEAs, by January 1, 2009, and again by June
        30, 2009.