**Analysis of Public Comment on the Department's**

**March 6, 2002 Proposed Requirements**

**for Consolidated State Applications**

##### Table of Contents

#### 

[Page]{.underline}

#### General Considerations 1

####  

#### Timelines For Developing Consolidated Applications 3

#### 

#### Other Timeline Considerations 7 

#### Appendix A: ESEA Performance Goals, Performance 

#### Indicators, and State Performance Targets. 8

#### 

#### Proposed Performance Goal 1: All students will reach 

#### high standards, at a minimum attaining proficiency or 

#### better in reading and mathematics by 2013-2014. 11 

####  

###### Proposed Performance Goal 2: By 2013-2014, all students 

> **will be proficient in reading by the end of the third grade.** 14
>
> **Proposed Performance Goal 3: All limited English proficient students
> will become proficient in English.** 15
>
> **Proposed Performance Goal 4: By 2005-2006, all students**
>
> **will be taught by highly qualified teachers.** 16
>
> **Proposed Performance Goal 5: All students will be educated**
>
> **in learning environments that are safe, drug free, and**
>
> **conducive to learning.** 19
>
> **Proposed Performance Goal 6: All students will graduate**
>
> **from high school.** 22

**Appendix B: State Activities to Implement ESEA Programs.** 25

**Appendix C: Key Programmatic and Fiscal Information** 29

> **Part I -- Programmatic descriptions** 30
>
> **Part II -- Fiscal information** 37

**Appendix D: Assurances** 41

**Other Considerations** 42

**Appendix E -- Enhanced Assessment Instruments**

**Competitive Grant Program (Title VI, section 6112) --**

**Program Information and Proposed Selection Criteria** 46

**Appendix F -- Optional Interim Application for FY 2002**

**Funds Under the Safe and Drug-Free Schools and**

**Communities State Grants Program (Title IV, Part A,**

**Subpart 1)** 47

**Analysis of Public Comment on the Department's**

**March 6, 2002 Proposed Requirements**

**for Consolidated State Application**

In response to the Department's request for public comment on its Match
6, 2002 proposal for requirements to govern the ESEA consolidated State
application, the Department received 53 written comments. These comments
addressed the entirety of the Department's proposal. In general, these
comments evidenced wide support that these comments generally express
for the Department's overall proposal to build a core system of ESEA
accountability onto the consolidated State application and the near
unanimous endorsement of our efforts to have this application focus the
ESEA programs on a single goal: increased student achievement of all
students.

We address below the specific suggestions that commenters offered to
improve requirements and procedures to govern the consolidated State
application, and our responses to them. We also intersperse in this
discussion our reasons for a number of unsolicited changes that we made,
not in response to specific public comment, but as a result of reviewing
our overall proposal in light of the public comment we received.

## **General Considerations**

[Comment]{.underline}: While agreeing with the Department's objectives,
commenters were divided on whether our proposal that States develop
performance targets for each proposed ESEA performance indicator, and
then generate data on how well they were meeting them, would impose
excessive burden on States and local educational agencies (LEAs). Some
said that their States already collect these data. Others said that the
proposed performance indicators did not align with what States were now
doing, and that they and their LEAs -- particularly those in rural areas
-- would need time to put these accountability and data collection
systems in place. In this regard, several commenters argued that the
proposed ESEA accountability system would, if established, create
additional and unwarranted layers of data management and burden beyond
those created by State legislators and boards of education that, as one
commenter stated, would be inconsistent with responsibilities of the
Department and the Office of Management and Budget under the President's
Executive Order 13132 on federalism.

[Response]{.underline}: With the recent enactment of the No Child Left
Behind Act (NCLB), an increased State and local focus on student
achievement of all students is now at the heart of all ESEA programs.
The system of ESEA accountability that States will adopt builds on two
fundamental principles of the reauthorized ESEA: greater State and local
flexibility in how programs are designed and implemented and greater
State and local accountability for results. As part of a comprehensive
approach to targeting ESEA programs on increasing student achievement,
States that choose to receive program funding on the basis of
consolidated applications will (1) adopt, at a minimum, our core set of
ESEA performance goals and indicators and then (2) develop performance
targets and data collection systems to measure how well they are meeting
these targets.

The use of a common set of minimum ESEA goals and performance indicators
can help determine whether the promise of the ESEA is being fulfilled --
both within each State and across the Nation. In considering public
comments, we have reduced the number of performance indicators from 17
to ten, taking into consideration the link to increased academic
achievement and difficulties collecting reliable data. Many of the
remaining indicators are required by statute. Others, such as
percentages of classes taught by highly qualified teachers (3.1) reflect
objectives that are basic to the goal of ensuring that no child is left
behind and to the purposes of the ESEA. State data collection systems
must be able to produce reliable data on State performance targets.
However, we do not require States to adopt any particular data
collection system or benchmarks, or use any particular data. Moreover,
while States may achieve fiscal economies by working together to develop
these data collection systems, States determine whether to work alone or
with other States.

States and LEAs will need some time and assistance to implement systems
for securing necessary performance data, and we intend to work with
State and local officials over the coming year to help them meet these
challenges. However, as noted above, the core set of ESEA performance
indicators will have States and LEAs implement either what the ESEA now
expressly requires, or what is basic to any reasonable system of
accountability for achieving the purposes of the ESEA. Hence, The
Department believes that this system does not impose costs or burdens on
States and LEAs beyond what is necessary to hold them accountable for
the academic achievement of all students, as the ESEA requires.

Our requirements for consolidated State applications also are consistent
with the President's Executive Order 13132 (August 10, 1999). Through
this Order, all agencies of the Executive Branch are charged with
implementing activities that, after all feasible consultation with State
and local officials, acknowledge the importance of State authority and
decision-making. We have established requirements for the consolidated
State application, both for the ESEA accountability system and the
submission of other programmatic information, after careful
consideration of all public comment. Under the application requirements,
the Department will hold States accountable for increasing student
achievement but will neither review nor approve State strategies for
achieving these results. Rather, States and LEAs have the flexibility to
design and implement their own strategies.

In addition, consistent with the final requirements for consolidated
applications the Department has established, States are free to develop
applications in ways that best meet their own circumstances. Indeed,
States that choose not to implement the ESEA accountability system may
instead receive ESEA program funding on the basis of individual program
plans or applications that the ESEA otherwise requires.

[Change]{.underline}: As described below in comments on "Appendix A:
ESEA Performance Goals, Performance Indicators, and State Performance
Timelines," we have deleted several performance indicators from the core
set that States must adopt.

### Timelines For Developing Consolidated Applications

[Comment]{.underline}. Under the Department's proposal, States would
submit this spring, in their consolidated applications, certain key
descriptive information about both the ESEA programs that they choose to
include (appendix C) and strategies for implementing them in ways that
would focus on increased student achievement (appendix B). By the spring
of 2003, States would submit performance targets for each of the
required core performance indicators, as well as baseline data relative
to those targets (appendix A). Progress in meeting these performance
targets would then be tracked through data States provide in the annual
consolidated performance report.

The Department received considerable comment on this proposed timeline.
Some commenters felt the timelines were workable. Others cautioned that
they were not. Commenters noted that State ability to submit desired
information by spring 2003 depended on such factors as: (1) individual
State circumstances, such as State timetables for implementing their own
systems of accountability, and (2) the extent to which States already
collect data that aligns with the proposed ESEA performance indicators.
With regard to migrant students, one commenter noted that many States do
not now diasaggregate their data by migrant status, and asked how these
States are now to do this for data gathered for the school year
2001-2002 baseline year.

[Comment on reporting data required by Title I, Part A]{.underline}.
Opinion differed with regard to State ability to provide Title I, Part A
assessment data by spring of 2003. For example, some commenters thought
that some States would be able to report baseline information relative
to State assessments of proficiency required by Title I, Part A by
spring 2003, and so be able to provide data by then required by
Performance Indicators 1.1 and 1.2. However, many commenters stated that
the need to put in place new statewide data management systems would
preclude States from being able to provide baseline data by then. For
some, even the performance indicators for Goal 1 would require States to
collect new information, and collecting quality baseline data might
prevent States from being able to report these data until the fall of
2003.

Moreover, some commenters from States that had received waivers of
statutory deadlines for developing their assessments under the 1994 ESEA
authorization recommended that the Department postpone data collections
beyond 2003. At least one State official emphasized that his State
conducts its assessments in the fall and, given such factors as the need
to develop new statewide academic content standards, might not be able
to collect baseline data in the fall of 2002 and report these data in
the spring of 2003.

[Comment on reporting data required for limited English proficient
students.]{.underline} With regard to assessing limited English
proficient students, some commenters emphasized difficulties States will
have in establishing performance targets and baseline data given the
large numbers of languages spoken in their States, difficulties in
assessing limited English proficient students' academic achievement
against State content standards through native language tests,
limitations on access to content area instruction in native languages
for those still learning English, and uncertainties about alternative
forms of assessments that might be offered.

In addition, the Department received comments that emphasized particular
difficulties States would have implementing performance targets for
indicators connected with proposed Goal 3: "All limited English
proficient students will become proficient in English." Some commenters
emphasized that assessing English language proficiency is a new
requirement in Title III of the ESEA, and that determining whether
students are making progress depends on baseline data on students\'
language proficiency, demographics, and academic achievement. They noted
that the Department should not be able to expect States to be able to
collect these data for school year 2000-2002, the year before the new
proficiency assessment requirement took effect, and so urged that States
be able to collect baseline data for school year 2002-2003, and then
report them sometime in the fall of 2003.

Other commenters stressed the difficulty in meeting even this time
schedule. They noted an existing or potential incompatibility between
data needed to track the proposed indicators and data that States now
use and have available, as well as the fact that some States now use
multiple or even unsystematic measures for determining English language
proficiency levels (*e.g*., length of student enrollment in the school
district and current level of English proficiency, measures that are not
now, but that will need to be, comparable across a State. One commenter
raised concerns about student privacy in tracking data that States would
need to report, and the overall technical and resource problems some
States will have in designing and implementing a statewide data
collection system.

[Response: Data required by Title I, Part A.]{.underline} The system of
ESEA accountability needs to be in place as soon as possible so that the
progress of each State -- and of the Nation as a whole -- in meeting the
goals of the ESEA can begin to be measured. Hence, we retain the
objective that States must submit all of these baseline data as early in
2003 as possible. On the other hand, commenters have helped us
understand that, depending on the performance indicator, States may need
some additional time to submit the required performance data beyond
spring 2003.

Indicators 1.1 and 1.2 for Goal 1 link to each State's responsibility to
prepare and disseminate information on student proficiency in an annual
report card. The ESEA plainly requires these data to be gathered for the
2001-2002 school year. First, section 1111(h)(1)(c)(i) of Title I
requires States **by the beginning of the 2002-2003 school year** to
prepare and disseminate a report card that includes, among other things,
information "in the aggregate, on student achievement in each
proficiency level on the State academic assessments described in
subsection (b)(3) (disaggregated by race, ethnicity, gender, disability
status, migrant status, English proficiency, and status as economically
disadvantages,.."). Also, a related requirement in section 1111(b)(2)(E)
of Title I provides that each school's adequate yearly progress (AYP)
toward enabling all students to meet the State's student academic
achievement standards must use "data for the 2001-2002 school year" as
the "starting point for measuring \... the percentage of students
meeting or exceeding the State\'s proficient level of academic
achievement on the \[required\] State assessments\...."

Moreover, the requirement in section 1111(b)(3)(C)(xiii) that States
employ annual assessments that disaggregate proficiency data mirrors
current annual assessment requirements, for the same disaggregated
groups, that existed in ESEA section 1111(b)(3)(I) as previously
authorized. Section 1111(b)(2)(E) separately requires that States use
baseline data for the 2001-2002 school year in measuring the percentage
of Title I schools that make AYP (Indicator 1.3).

In a number of cases, the Department has granted waivers to States, or
entered into State compliance agreements, that have granted States more
time to put in place the assessments that the ESEA, as previously
authorized, required. However, these waivers and compliance agreements
in no way affect the requirement that [all]{.underline} States report
academic proficiency in reading and mathematics using school year
2001-2002 baseline data. States that, because of delay in adopting
appropriate assessment instruments and in implementing required
assessments, must use whatever annual assessments they currently have in
place to report the data in section 1111(h). Once States have in place
assessments that conform to ESEA section 1111(b)(3), they will adjust
baseline data collected through these instruments.

[Other data]{.underline}. The ESEA requires States receiving Title I and
title III funds to develop and use performance measures that reflect the
proficiency of English proficient students, both in comprehending
English and in academic proficiency. The law requires States that, to
date, have not implemented these measures to do so. The core set of
performance indicators merely adopts these statutory requirements.

We recognize that States may face reasonable difficulties reporting
baseline data by spring 2003 for those performance targets that are
linked to indicators -- such as English language proficiency (2.1) and
highly qualified teachers (3.1) -- for which the ESEA does not require
States to use school year 2001-2002 as a baseline. Therefore, we will
permit States to submit baseline data related to performance targets for
these indicators by September 2003, provided that States provide the
Department with performance targets for these indicators with their
spring 2003 submissions. States that do so would receive FY 2003 grant
awards that condition the obligation of funds (and receipt of any second
installment of ESEA funds that Congress may appropriate) on submission
of these data by approximately September 10, 2003. (We will announce the
precise due date well in advance.)

Finally, for those ESEA performance indicators whose reporting is not
tied by law to 2001-2002 baseline data, we reiterate our commitment to
work with States over the coming months to identify examples of
performance targets and data that will be reliable and useful.

[Change]{.underline}: All States submitting consolidated applications
will need to identify for the Department, by spring of 2003, their
performance targets for all of the required ESEA performance indicators.
Appendix A of the *Federal Register* notice announcing final
consolidated application requirements clarifies those performance
indicators for which States must report, by spring of 2003, baseline
data for the 2001-2002 school year relative to their performance
targets, and, conversely, those indicators for which they may report
baseline date for the 2002-2003 school year relative to their
performance targets no later than early September 2003. The consolidated
State application package will do the same. After further discussion
with State officials, the Department will announce precise due dates for
each set of baseline data, well in advance of the established dates.

**Other Timeline Considerations**

[Comment]{.underline}: The Department also received a number of other
comments on the timelines for completing the consolidated State
application. Some commmenters said that the timeline for submitting
information identified in Appendices B and C was adequate.
Alternatively, in view of the short timeframe for preparation of the
applications, consultation with the Governor and the public, public
review, and formal State approval of the application submitted this
spring, other commenters urged the Department to be more flexible in its
expectations for the State submissions identified in these two
Appendices. For example, one commenter urged that States be permitted to
amend the consolidated plans they submitted under the ESEA as previously
authorized, or be able to submit the required information in "draft"
form. Another urged the Department to grant waivers to States that could
not complete the spring 2002 portion of their applications on time.

Other commenters urged the Department to clarify information States are
to submit in each of their periodic submissions, with one commenter
adding that the timelines would only work if the Department quickly
advised States about needed content and formats.

[Response]{.underline}: The Department is aware of the challenges
presented by the calendar and the need to be able to approve
consolidated applications in time to make awards in early July. For the
most part, the information requested in appendices B and C of the
*Federal Register* notice announcing final consolidated application
requirements is basic to the operation of the programs States choose to
include in their consolidated applications, and States should be able to
prepare this information fairly quickly. The application package will
clarify what information States must submit this spring and what
information would be submitted at later dates.

If appropriate, States may incorporate material from consolidated plans
prepared under the prior authorization of the ESEA. However, to
facilitate a prompt and orderly review of all consolidated State
applications, we will need to receive the text of any previously
prepared material with a State's submission.

We also understand that individual State procedures for consultation
with the public and the Governor, or for formal State approval, may
compromise a State's ability to submit the fully approved application by
the due date this June. We are prepared to work with States, as needed,
to have any needed application revisions submitted to us for review
after the due date.

In this regard, we emphasize the distinction between general
requirements in section 9302(a) that an SEA submit a consolidated
application "after consultation with the Governor" and the specific
statutory requirements under the Safe and Drug-Free Schools and
Communities program (Title IV, Part A, Subpart 1) that the Governor (or
his designee) not only participate in the development of a State\'s
application but also (since the Governor's office or designee will
receive funding) sign the funding application. Section 9302(a) does not
authorize the Secretary to waive ESEA program requirements. Hence, the
Department will be unable to award funds under the Safe and Drug-Free
Schools and Communities program until it has received both evidence that
the Governor or designee has been involved in developing the
consolidated application, and the signature of the Governor or designee
on this application.

[Change]{.underline}: The application package will be clarified to
reflect the discussion in the response.

Appendix A: ESEA Performance Goals, Performance Indicators, and State
Performance Targets.

Those who commented on the Department's proposal for minimum components
of an ESEA accountability system almost universally supported the
initiative. However, a number of commenters expressed concern that the
required core set of performance indicators that States would need to
adopt was not always compatible with existing State data collection and
accountability efforts. Others offered suggestions for clarifying or
improving the Department's proposal. We first address the general
questions and concerns about the system, and then specific comments on
particular goals and indicators.

[Comment]{.underline}: Many commenters strongly commended the Department
for its proposal to construct an ESEA core system of accountability that
would be at the heart of both the consolidated State application and
State efforts to increase student achievement

Other commenters, while supporting the thrust of the proposal, expressed
concern about the additional costs and burdens that the system would
place on States and LEAs that already have established their own data
collection and accountability systems. Still others expressed concern
about the costs and burdens on States that as of now collect no
student-based data at all, or that could result from a push toward
multi-state development and use of common data elements. One commenter
urged that, in view of the President's emphasis on flexibility in
achieving results, the Department should not mandate goals, indicators,
and performance targets that are not expressly required by the ESEA, but
should instead permit each State to establish the goals, indicators, and
targets that fit its own contexts. Yet another commenter questioned the
very basis under which the Department would require such an
accountability system.

As for the proposed performance indicators themselves, one commenter
urged that the Department adopt its proposal, and provide States a
"research base" to enable them to implement the system effectively.
Others, based on the practice in their States, urged the Department to
permit States or schools to establish their own levels of progress,
provided that they comport with the established performance indicators.
One commenter noted that this would enable States to tailor performance
targets so that, depending on circumstances in individual schools, those
schools would be able to meet these targets at different paces. Still
another commenter noted a possible inconsistency among the proposed
indicators, examples of possible State performance targets, and
requirements of the ESEA program statutes for when grade-level
assessments must be conducted.

[Response]{.underline}: Four key principles have guided our development
of the minimum components of an ESEA core system of accountability.

1.  The data the system generates must be meaningful indicators of

> whether all students are increasing their academic achievement, and
> whether other key goals of the ESEA are being met;

2.  Consistent with a core set of commonly accepted ESEA goals

> and performance indicators, States must be free to adopt performance
> targets that they have determined are appropriate;

3.  While States must collect reliable data on how well they are meeting
    these performance targets, the system must be manageable and not
    impose unnecessary or disproportionate costs on States and LEAs; and

4.  The system as a whole must be understandable.

A number of the performance indicators flow directly from assessment
measures and AYP data that Title I, Part A or other ESEA program
requirements direct States to adopt. Moreover, as discussed below, we
have eliminated or revised a number of our proposed goals and indicators
that we have concluded are not useful in helping the Department or the
public to determine whether individual States and the Nation as a whole
are meeting the purposes of the ESEA.

Our system of federalism places the responsibility for increasing
student achievement, and for designing and implementing strategies and
educational practices that will do so, on State and local governments,
school authorities, and school and LEA personnel. Still, the ESEA
confers on the Department a clear and special responsibility to monitor
the Nation's progress in ensuring that States, LEAs, and schools
accomplish what is so central to the ESEA -- that all children be given
the means to achieve to challenging academic standards.

In the absence of consolidated State applications, the Department would
review and monitor each individual ESEA program application or plan that
a State had submitted. Reliance on individual applications and plans,
however, could easily tax the resources of both the Department and the
State agencies. However, the broad authority ESEA section 9302(a) and
(b) gives the Department to establish the minimum necessary "procedures
and criteria" for submission of consolidated applications enables the
Department to solve this problem. It allows us to eliminate program
application requirements that the Department does not need to review as
a condition of funding. And, at the same time it enables the Department
to implement a means for reasonably monitoring the Nation's progress in
meeting the goals of the ESEA -- requiring those States that elect to
submit consolidated applications to (1) adopt at least a minimum core
set of basic performance indicators, and then (2) collect reliable data
on related performance targets of their own choosing.

We have used the public comment process to tailor these performance
indicators so that they reflect what we believe, and public comment
generally corroborates, are key indicators of progress in measuring
increases in student achievement. We understand that, even before
enactment of NCLB, many States already had adopted a number of these
indicators. In addition, as we stated in response to the previous
comment, some of the performance data that States would need to report
reflect ESEA requirements; for these data, the core EEA system of
accountability imposes no additional cost or burden. Still other
indicators, such as measures percentage of classes being taught by
"highly qualified" teachers (3.1), are basic so basic to the success of
efforts to leave no child behind that we do not believe a system of
measuring progress in achieving the purposes of the ESEA can reasonably
omit them. (Compare ESEA section 1119(a)(2) and (b)(1)(B).) For these
other indicators, we believe any additional costs of data collection
flow squarely from the very purpose and language of the new law.

Our responses to comments on specific performance goals and indicators
should address any possible inconsistencies. We reiterate, finally, that
the examples of State-established performance targets included in our
March 6 notice of proposed requirements were only illustrative. States
will choose their own performance targets, using baseline data as
explained above for either the 2001-02 or 2002-03 school year. Moreover,
while States will establish performance targets that apply statewide,
they are free to permit individual LEAs and schools to establish their
own pace and levels of progress consistent with those targets.

[Change]{.underline}: None.

Proposed Performance Goal 1: All students will reach high standards, at
a minimum attaining proficiency or better in reading and mathematics by
2013-2014.

[Comment]{.underline}: [General]{.underline}. One commenter urged the
Department to provide separate statements of goals for academic
proficiency in reading and mathematics. The commenter argued that, since
strategies, resources, partners, and supports required for each subject
area will differ, it will be difficult to develop a comprehensive plan
that addresses academic proficiency across both subject areas.

A number of other commenters raised questions about the related
performance indicators. As a general matter, commenters wanted to know
whether the Department expected States to collect data on the school
population on the basis of a cohort of students or on the basis of all
students attending a school. For example, if States are expected to
collect data against the cohort of students who must be assessed
beginning in 2005-06 under Title I, Part A, States will have only nine
years to reach the goal. However, if States track all students in a
school now against the performance goal, States will have 12 years to
meet the goal. Another commenter urged the Department to break Goal 1
into different performance goals that acknowledge different levels of
English language proficiency among students, and to lead a national
discussion on psychometric issues that concern limited English
proficient students. Still another commenter questioned how all children
could be expected to achieve proficiency in reading and mathematics by
2013-14 given the continuous influx of limited English proficient and
immigrant populations.

Finally, two commenters noted that the proposed performance indicators
applied only to Title I schools, while the proposed Goal 1 applied to
all schools. They recommended that the indicators be extended to all
schools. One commenter recommended that the Department include science
proficiency in the required goals and indicators.

[Response]{.underline}: State and LEA strategies for achieving the goal,
and for measuring success on reading and mathematics proficiency, will
no doubt vary. However, the power of the single performance goal is that
it encompasses student proficiency in both reading and mathematics.
While indicators 1.1 and 1.2 separately focus on reading and
mathematics, we see no reason to bifurcate Goal 1 itself. Having said
this, we understand that constant inflows of limited English proficient
and immigrant students may create for States and LEAs special challenges
to attaining Goal 1. While we all need to understand and address the
psychometric implications of these populations, these various issues
should not divert attention from the fundamental charge of the ESEA --
to ensure that all children are proficient in reading and mathematics by
the 2013-2014 school year.

States have flexibility to determine the performance targets and data
they choose to use in addressing the performance indicators. Hence,
States have the choice of what school populations or grade cohorts with
which to measure success in meeting these Goal 1 performance targets.

We have examined the question of the proposed indicators focusing only
on reading and mathematics achievement in Title I schools in light of
the comments, and conclude that the statement of 1.1 and 1.2 need to be
revised. The ESEA, like the statement of Goal 1, is concerned with the
achievement of all students in all schools, and section 1111(h)(1)(C)(i)
calls for States to report assessment results for all students in all
schools. We, therefore, have corrected the statement of each indicator
so that it refers to the proficiency of all students in "all schools."

We have decided not to expand our proposed goals and indicators to
reflect other key areas, such as science proficiency. Achievement in
science, social studies, and other subjects is plainly important.
However, we focus on the need to measure State success in reading and
mathematics proficiency because, consistent with our guiding principles,
State reporting on academic proficiency in these two key areas, unlike
science and social studies, is not only now statutorily required but may
be a reasonable marker for proficiency in other content areas.

[Change]{.underline}: The wording of Performance Indicators 1.1 and 1.2
have been revised, accordingly.

Performance Indicator 1.3: The percentage of Title I schools that make
adequate yearly progress in reading and mathematics.

[Comment]{.underline}: None.

[Response]{.underline}: As proposed, Indicator 1.3 was misstated.
Schools do not make AYP in certain subject areas. Rather, schools that
achieve AYP meet requirements in reading achievement, mathematics
achievement, percent of students assessed, high school graduation rates,
and in at least one other elementary indicator. In short, schools either
achieve AYP or they do not.

[Change]{.underline}: The proposed indicator is changed to reflect
simply the percentage of Title I schools that make AYP.

[Proposed Indicator 1.4: The percentage of migrant students who are
enrolled in schools in need of improvement.]{.underline}

[Comment]{.underline}: Two commenters urged the Department to withdraw
this proposed performance indicator for Goal 1, contending that the
percentage of migrant students enrolled in schools in need of
improvement does not truly relate to the goal of having all students at
least proficient in reading and mathematics by 2013-14.

[Response]{.underline}: The Department agrees with the comment.
Moreover, migrant student achievement is now reflected in Goal 1, which
requires the disaggregation of achievement data by the subgroups
specified for assessments (section 1111(h)(1)(C)(i)).

[Change]{.underline}: Proposed Indicator 1.4 is withdrawn.

Proposed Indicator 1.5: The percentage of students that meet or exceed
State standards for student literacy in technology.

[Comment]{.underline}: This indicator generated significant discussion.
On the one hand, commenters reminded the Department that if students
cannot use technology, they will not be able to benefit from technology
in their classrooms. On the other hand, several commenters urged the
Department to revise or withdraw this proposed indicator. A few
expressed uncertainty about what the indicator means and how performance
data could easily be collected. For example, one commenter requested
clarification on whether the indicator refers to literacy in information
technology or in technology education. The commenter said that while
most States have standards in both, to avoid confusion the Department
should clarify its terminology. The commenter urged the Department to
have the indicator focus on student use of various technologies, such as
computers and related peripherals, the Internet and distance learning
technologies, and hand-held and other digital devices to access
information, manipulate and evaluate that information, and communicate
it in a variety of formats. One commenter noted the difficulty in
measuring technological literacy without an assessment and technology
standards, things that many States do not have and whose development
States and LEAs will find costly.

Other commenters recommended that the indicator should be revised to
permit States to measure technology literacy in connection with State
curriculum standards. One commenter argued that technology is a tool
that must be integrated into the learning environment and should not be
assessed separately. Still another argued that this indicator had little
to do with proficiency in reading and mathematics. Another commenter
urged that professional development, not technological literacy, is the
key since students are already capable of doing assignments teachers
give, and that her State would need several years before it could
implement the new standards and data collection systems that this
indicator seemed to require.

[Response]{.underline}: After reviewing the comment, we agree with the
commenters who asserted that the proposed indicator would not work well.
Few States have adopted standards for technology literacy. And we agree
with those commenters who stressed that the use of technology needs to
be examined in the context of how its use supports learning and
achievement. It is difficult to envision a useful performance indicator
that would (1) relate to indicia of student success in attaining high
standards, particularly in reading and in mathematics, and (2) be
amenable to reliable and useful data collection.

[Change]{.underline}: Proposed Indicator 1.5 is withdrawn.

**Proposed Performance Goal 2: By 2013-2014, all students will be
proficient in reading by the end of the third grade.**

[Comment]{.underline}: Several commenters urged the Department to
reconsider its proposal to adopt this performance goal and related
performance indicator. Commenters argued, among other things, that that
the goal (1) duplicates the intent of Goal 1, (2) expands data
collection and reporting requirements by creating an additional
assessment requirement that may be confusing and legally premature in
view of Title I, Part A AYP requirements, and (3) may be perceived as
conflicting with what third-grade attainment should mean.

[Response]{.underline}: We agree with the comments.

[Change]{.underline}: Goal 2 and Performance Indicator 2.1 have been
omitted.

Proposed Performance Goal 3: All limited English proficient students
will become proficient in English.

[Comment]{.underline}: Two commenters were concerned that the wording of
Performance Goal 3 did not reflect the statutory intent, with respect to
limited English proficient students, of increasing both English
proficiency and content area achievement. One of the commenters urged a
change in the wording to help encourage LEAs to develop scientifically
based approaches to language instruction programs.

[Response]{.underline}: We agree that the performance goal should be
revised to reflect both English proficiency and academic achievement.
The issue of how to help LEAs develop scientifically based approaches to
language instruction programs is best left to program guidance.

[Change]{.underline}: Goal 3 has been revised to read as follows: "All
limited English proficient students will become proficient in English
and reach high academic standards, at a minimum attaining proficiency or
better in reading and mathematics." Because academic achievement,
disaggregated for limited English proficient students, already is
addressed in indicators for Goal 1, we also have added two additional
performance indicators, 3.2 and 3.3, that are directly linked to
Indicators 1.1 and 1.2 and read as follows:

> [3.2]{.underline} [Performance indicator]{.underline}: The percentage
> of limited English proficient students who are at or above the
> proficient level in reading on the State\'s assessment, as reported
> for Performance Indicator 1.1.
>
> [3.3]{.underline} [Performance indicator]{.underline}: The percentage
> of limited English proficient students who are at or above the
> proficient level in mathematics on the State\'s assessment, as
> reported for Performance Indicator 1.2.

[Proposed Indicator 3.1: The percentage of children identified as
limited English proficient who have attained English proficiency by the
end of the school year.]{.underline}

[Comment]{.underline}: One commenter focused on the requirement in ESEA
section 3122(a)(2) that annual measurable achievement objectives must
reflect the amount of time a limited English proficient student has been
enrolled in a language instruction educational program. The commenter
pointed out that performance Indicator 3.1 did not take into account
this "time in program" element, and stated that, as a result,
substantial influxes of limited English proficient students could skew
the English proficiency data of a particular school, school district, or
State. Another commenter asked whether States, in addressing performance
Indicator 3.1, would be required to mandate the use of one particular
English proficiency assessment instrument by LEAs. Commenters also
requested guidance in a number of areas: how States should develop their
performance targets and data systems at a reasonable cost, what
assessments would yield reliable data, and what school-year baseline
data they should use.

[Response]{.underline}: We agree that Goal 3 needs performance
indicators that reflect the time-in-program element as well as the
academic achievement element. We have revised the performance indicators
for Goal 3 accordingly. States have flexibility under the ESEA to
determine assessment measures LEAs will use in determining levels of
English language proficiency. States may adopt one or more instruments,
provided that the instruments (1) are aligned with State academic
content and student achievement standards, (2) assess English language
proficiency in speaking, listening, reading, writing, and comprehension,
and (3) are consistent with nationally recognized professional and
technical standards. The Department will address issues relating to the
content of baseline data that SEAs will submit to the Department after
the spring of 2002 and other pertinent matters in guidance that it is
developing.

[Change]{.underline}: Performance Indicator 3.1 has been revised to read
as follows: "The percentage of limited English proficient students,
determined by cohort, who have attained English proficiency by the end
of the school year."

Proposed Performance Goal 4: By 2005-2006, all students will be taught
by highly qualified teachers.

[Comment]{.underline}: One commenter urged the Department to add a new
Indicator 4.4 for the percentage of minority children who are taught by
"highly qualified" teachers (as the term is defined in ESEA section
9101(23)). The commenter noted that ESEA section 1111(b)(9)(C) requires
State plans to address this matter as part of the description of steps
to have all Title I programs offer instruction by highly qualified
instructional staff. The commenter urged adoption of this new indicator
to ensure that States focus on the particular need of minority students
for highly qualified teachers.

[Response]{.underline}: Indicator 4.1 requires States to report data for
the percentage of classes, in the aggregate and in high-poverty schools,
being taught by highly qualified teachers. We do not believe that the
additional indicator the commenter recommends would add sufficient
additional value to warrant its inclusion in the core set of required
minimum indicators.

[Change]{.underline}: None.

[Proposed Indicator 4.1: The percentage of classes being taught by
"highly qualified" teachers (as the term is defined in section 9101(23)
of the ESEA), in the aggregate and in terms of "high-poverty" schools
(as the term is defined in section 1111(h)(1)(c)(viii) of the
ESEA).]{.underline}

[Comment]{.underline}: Several commenters emphasized that data for
proposed

Indicator 4.1 might be difficult to collect.

[Response]{.underline}: We intend to work with SEAs in the coming months
on

ways to collect data relative to possible performance targets States
might adopt. However, we note that this indicator closely mirrors the
SEA's responsibility under ESEA section 1119(b). This provision requires
each SEA to develop a State plan that includes "annual measurable
objectives" for each LEA and school in terms of an annual increase in
the percentage of highly qualified teachers, to ensure that all teachers
in LEAs receiving Title I, Part A funds are highly qualified not later
than the end of the 2005-2006 school year.

[Change]{.underline}: None.

[Proposed Indicator 4.3: The percentage of teachers qualified to use
technology for instruction.]{.underline}

[Comment]{.underline}: Several commenters urged the Department to revise
the proposed indicator. They felt that, as the indicator is drafted,
States would have to implement a performance-based system for assessing
the qualifications of teachers to use technology as a measure of
determining whether they are qualified to teach, something that would be
very expensive to develop, would overstep statutory criteria for "highly
qualified" teachers, and might not even be useful. One commenter urged
that States retain the right to define "qualified" in the context of
technological literacy. A number of commenters urged that the indicator
be revised to read: \"the percentage of teachers prepared to use
technology for instruction."

[Response]{.underline}: Teachers need to know how to teach their
subjects and content areas well to all students. Technology can be an
important tool, and the increased LEA emphasis on school computer labs,
Internet capability, and the other technological devices and capacity
increases the importance in ensuring that these investments pay off in
terms of increased student achievement. However, we agree with the
commenters that the proposed indicator is problematic in that it would
have States assess the qualifications of teachers to use technology
against "standards" that we believe few States have. Moreover, while the
proposal that the indicator be revised to say "the percentage of
teachers prepared to use technology for instruction" would avoid this
hurdle, it would create others. Principally, we do not know how States
would measure whether, or how well, teachers are prepared to do this.

The Department will pursue ways of evaluating how well teachers use
their LEAs' and schools' investments in technology, and what they and
other school officials can do to use technology effectively. However, in
light of the comments, we have decided to withdraw this proposed
indicator from the core system of accountability. Information the
performance data would provide may not warrant the cost and effort.

[Change]{.underline}: Proposed Indicator 4.3 is withdrawn.

[Comment]{.underline}: None.

[Response]{.underline}: While reviewing public comment on the proposed
performance indicators for this goal, we determined that we had
inadvertently neglected to include an indicator for the quality of
instructional paraprofessionals. ESEA section 1119(c)-(f) requires each
LEA receiving Title I, Part A assistance to ensure that all
instructional paraprofessionals no later than the end of the 2005-2006
school year have (1) met minimum requirements of postsecondary
education, or (2) passed relevant State or local academic assessments.
The law also requires all LEAs receiving Title I, Part A assistance to
ensure that instructional paraprofessionals hired after the beginning of
the 2002-2003 school year have met these requirements. In view of the
paramount importance of the requirement for ensuring that all students
have the benefit of quality instruction, whether offered by teachers or
by paraprofessionals, we have determined that an additional performance
indicator in this area is needed.

[Change]{.underline}: We have added a new performance indicator, "The
percentage of paraprofessionals (excluding those with sole duties as
translators or in parental involvement assistance) that are qualified.

**Proposed Performance Goal 5: All students will be educated in learning
environments that are safe, drug free, and conducive to learning.**

[Comment: General]{.underline}. Commenters felt that proposed Goal 5
mixed two different goals: school safety and an environment conducive to
learning. Some commenters recommended either a separate goal on use of
instructional technology, or a revised statement of the goal that
focused on a learning environment that includes appropriate use of
technology, that is safe, and that is drug free.

Beyond this, our proposed indicators for Performance Goal 5 generated
considerable comment. Noting that two of the three proposed indicators
seemed based on data States collect biennially under the Safe and
Drug-Free Schools and Communities program (Title IV, Part A of the
ESEA), several commenters asked whether States would now be required to
collect these data for these indicators annually. Others recommended
other performance indicators for inclusion in the set of core ESEA
indicators. For example, one commenter recommended that, consistent with
provisions of the ESEA, the Department include indicators related to
drug use, age of onset, perception of health risk, disapproval of
violence, and serious behavior risk. Several commenters suggested the
adoption of additional indicators, such as use of trained
paraprofessionals and parent and community involvement, to proposed 5.5
(number of schools in which all students are able to work from a network
computer) in order to reflect more expansively learning environments
"conducive to learning."

For proposed Indicator 5.1 [(the percentage of students who carried a
weapon (for example, a gun, a knife, or club) on school property (in the
30 days prior to the survey)]{.underline}, one commenter urged the
Department to revise the indicator to have data collected in the 12
months preceding the survey. The commenter noted that this change would
be consistent both with the language of proposed Indicators 5.2 and 5.3,
and with the practice in the commenter's State. Another commenter
believed that data that aligned with Indicator 5.1 might be difficult to
collect.

For proposed Indicator 5.2 [(the percentage of students who engaged in a
physical fight on school property (in the 12 months preceding the
survey)]{.underline}, one commenter recommended that the indicator be
aligned with requirements of the Gun-Free-Schools Act (GFSA) by having
data reported for the past school year.

For proposed Indicator 5.3 [(the percentage of students offered, sold,
or given an illegal drug on school property in the 12 months preceding
the survey)]{.underline}, one commenter stated that the phrase
"percentage of students offered, sold, or given any illegal drugs on
school property" needed more clarity. The commenter recommended that the
phrase be revised to read "percentage of students who have used, sold,
or possessed" an illegal drug so that the indicator matches the data
currently being collected in the State. Another said that States may
have difficulty collecting data for a related performance target.

[Response]{.underline}: As proposed, Goal 5 (now Goal 4) is intended to
address aspects of the school environment that are critical to the
process of teaching and academic achievement, but that are not
themselves captured in goals for student academic achievement, English
language proficiency, or teacher quality (Goals 1-4, as proposed). As
such, we believe that the Department's statement of this goal is
appropriate because it provides to SEAs a framework in which to place
their own performance indicators relative to important aspects of the
environment necessary for learning to occur.

However, upon considering the public comment, we have decided to
withdraw our proposed Indicators 5.1-5.3. While data that States gather
on how well LEAs and schools meet respective performance targets are
vitally important to student, parent, and public awareness of specific
matters related to school safety and to a school's overall learning
environment, we believe that the States should retain the flexibility to
develop indicators that link closely to the priorities they establish in
this area. Revisions of these indicators as suggested by commenters
might improve their relevance or utility for some States or localities.
However, based on the comments received, it appears that the limited
number of indicators that we could propose in this area would be
unlikely to adequately measure performance in all States. Because
measuring progress in this area is crucially important, we instead have
identified certain related elements as additional descriptions that
State will need to submit in response to appendix C for Safe and
Drug-Free Schools and Communities Act program (Title IV, Part A). This
approach focuses attention on the development of performance indicators
that are linked closely to priorities identified by the States, as well
as on information about baseline data, data sources, and timelines.

[Change]{.underline}: Proposed Indicators 5.1-5.3 are withdrawn.

[Proposed Indicator 5.4: The number of persistently dangerous schools,
as defined by the State.]{.underline}

[Comment]{.underline}: Several commenters expressed concern with this
proposed indicator. They said that States currently don't collect data
that identify "persistently dangerous" schools, except for required
Federal data on weapons and weapons-related infractions. Moreover, given
school concerns about being labeled "persistently dangerous," school
data are not always reliable, and a proposed indicator that permits each
State to define "persistently dangerous" differently will not enable the
Department to aggregate these data meaningfully. In addition, some
commenters contended that the ESEA does not require any State data
collection in this area, only that States define what a persistently
dangerous school is. Hence, these commenters asserted that, in view of
the ESEA's emphasis on greater State flexibility, the Department should
simply let the SEA define what it means for a school to be "persistently
dangerous."

In addition, commenters observed that the indicator is silent with
regard to both the time frame in which schools would need to be
determined to be "persistently dangerous," and the time frame for
lifting this characterization. Finally, given the consequences of a
school being declared persistently dangerous, a few commenters asked
about the LEA's responsibility to students and parents if all of its
schools were found to fit this definition, and about whether the
Secretary should establish a national definition of the term,
"persistently dangerous school."

[Response]{.underline}: Indicator 5.4 (now 4.1) corresponds to a new
ESEA requirement in section 9532. This provision requires each State
receiving ESEA funds to implement a statewide policy requiring that a
student attending a persistently dangerous school, as determined by the
State in consultation with the a representative sample of LEAs, or who
becomes a victim of violent criminal offense, as determined by State
law, while on school grounds, be entitled to transfer to a safe public
school within the LEA. This provision cannot mean, as some commenters
who argue for State flexibility contend, that students or their parents
have the onus of finding not only how the State has defined these terms
but whether the students are attending schools that meet the definition.
That interpretation would eviscerate the protections the law is intended
to provide. Rather, as a recipient of ESEA funds, the State now has a
statutory responsibility, working collaboratively with LEAs, to ensure
that students and parents know whether the schools students attend are
persistently dangerous (or have had violent criminal offenses committed
on their grounds). Given our interpretation of section 9532, proposed
Indicator 5.4 does not create additional data burden.

Unlike proposed Indicators 5.1-5.3, we believe it is reasonable to
retain this indicator in the core system of ESEA accountability. Data
that States collect relative to their performance targets will allow us
to learn whether they are making progress in reducing the number of
schools that are least conducive to learning.

[Change]{.underline}: None.

[Proposed Indicator 5.5: The number of schools in which all students are
able to work from a network computer.]{.underline}

[Comment]{.underline}: Those who commented on this indicator generally
recommended that it be revised, although for differing reasons. Some
felt that it simply did not belong next to indicators tied to drug use
and violence, and perhaps should be an indicator for a goal that focused
on instructional technology. Others felt the indicator should somehow
measure the frequency and regularity of students' use of technology to
meet content standards; one commenter noted that the indicator, as
proposed, did not differentiate between uses that promoted academic
achievement and uses that are illicit. At least one commenter urged the
Department to clarify how much or how little student access during the
school day it considers to be "access."

[Response]{.underline}: As is the case with the other proposed
indicators that concern technology, our review of the public comment has
convinced us that this indicator is not likely to yield data that will
help us know the extent of progress that individual States and the
Nation as a whole are making in improving student achievement. By
itself, being able to work from a network computer --- be it in a single
computer lab or in every classroom within a school --- tells us little
about whether the environment is conducive to learning, thereby helping
to increase achievement. The key issue is whether students' use of
network computers help them meet the State's challenging content
standards. This issue, unfortunately, is not something that data
collected on the basis of this indicator can tell us.

For this reason, we withdraw the proposed indicator. In doing so, we are
not suggesting that technology is unimportant to learning. Indeed, the
Department intends to continue its efforts to study how uses of
technology can and do advance learning. We simply are not convinced that
requiring SEAs and LEAs to collect State and LEA data for this kind of
performance indicator will likely yield information that either is
indicative of whether student achievement is increasing or is worth the
cost.

[Change]{.underline}: Proposed Indicator 5.5 is withdrawn.

**Proposed Performance Goal 6: All students will graduate from high
school.**

[Comment]{.underline}: Several commenters presented very different
recommendations. One said that, while laudable, having all students
graduate from high school is not an ESEA requirement; the requirement
for measuring high school completion under AYP in Title I, Part A has
LEAs and schools record their high school graduation rates and use them
for purposes of accountability, but does not require that all students
graduate. Two other commenters argued strongly in favor of maintaining
the goal as a major step toward holding schools accountable for
achievement of minority, migrant, and limited English proficient
students, and for providing them the academic support those students
need.

[Response]{.underline}: The purpose of the entire ESEA, as amended by
NCLB, is to ensure that all children are able to achieve academically
and that no child is left behind. Implicit in this purpose is our
responsibility to do all we can to ensure that all children are able to
graduate from high school. Indeed, in implementing the ESEA, we believe
it is inconceivable that those who conduct any reasonable assessment of
student needs and who thereafter design program strategies to address
them, requirements that are imbedded in so many of the ESEA programs,
would neglect to focus on the needs of those who have dropped out of
school or are at risk of doing so. In this regard, ESEA section
1111(h)(1)(c)(vi) requires the State to report annually the graduation
rate for secondary school students consistent with section
1111(b)(2)(c)vi), which includes the graduation rate of secondary
students as one of the elements of the definition of AYP.

We understand the need to ensure that the data, which States submitting
consolidated applications must provide relative to their performance
targets for Indicators 5.1 and 5.2, are consistent with requirements for
AYP. To the extent necessary, the Department will address this matter in
the regulations or guidance it develops for the Title I, Part A program.

[Change]{.underline}: As noted below, we have revised somewhat the
performance indicators to address recommendations to improve or clarify
them. However, we believe that this goal and these indicators need to be
a fundamental part of the ESEA core system of accountability for student
achievement.

[Proposed Indicator 6.1: The percentage of students who complete high
school, disaggregated by poverty, limited English proficient and migrant
students, and major ethnic and racial group membership.]{.underline}

[Comment]{.underline}: While agreeing that section 1111(h) requires LEAs
to report high school graduation rates for all students, a commenter
states that the law does not mandate the kind of disaggregation that
this indicator would require. Since States do not now collect these
disaggregated data, they will need time to design and implement systems
for collecting them. One commenter argued that the proposed indicator
does not conform to (1) the definition of graduation rate LEAs must
report under ESEA section 1111(b)(2)(C)(vi), which requires reporting of
those who graduate "with a regular diploma in the standard number of
years," or (2) the expectation of the Committee of Conference to House
Report 107-334 that graduation rates track cohorts of students as they
enter secondary school and calculate the percentage graduating with
regular diplomas on the basis of this entering number.

Another commenter requested guidance on various aspects of the
definition of graduation rate in section 1111(b)(2)(C)(vi). For example,
would SEAs and LEAs look only at "regular diplomas"? In what number of
years must students have graduated (and does it matter that various
Federal program statutes permit services to students through age 21)?
Will the Department issue requirements on issues such as these, or will
States have flexibility to develop their own rules and definitions?

[Response]{.underline}: We have considered carefully the comments
provided. The indicators should remain stated as simply as possible. In
addition, while we agree with the need for the indicator to encompass
graduation with a regular diploma, we believe that we otherwise should
seek to minimize the reporting burden on States by making the indicator,
to the extent possible, consistent with ongoing NCES data collection
efforts. We intend to discuss with State and local officials the extent
to which they can develop and implement data collection methods that can
provide the data that NCES currently does not collect.

Accordingly, we intend soon to address aspects of this issue, such as
language about graduation "in the standards number of years," in
guidance. We also look forward to a dialogue with State and local
officials and educators in the coming months on how to design and
implement data collection methods that can offer reasonable and useful
baseline and other data for this important and all-too-neglected area.

[Change]{.underline}: Indicator 6.1 (now 5.1) has been revised to read
as follows: "The percentage of students who graduate from high school
each year with a regular diploma -- disaggregated by race, ethnicity,
gender, disability status, migrant status, English proficiency, and
status as economically disadvantaged -- calculated in the same manner as
used in National Center for Education Statistics reports on Common Core
of Data."

[Proposed Indicator 6.2: The number of students who drop out of school
after entering grades 7 through 12, disaggregated by poverty, limited
English proficient and migrant students, and major ethnic and racial
group membership.]{.underline}

[Comment]{.underline}: Several commenters urged the Department to adopt
rules defining when a student is to be considered a "dropout," rather
than leave this matter to the States. One commenter recommended that,
both for clarity and to align with legislative intent, the Department
revise this indicator to reflect the Joint Explanatory Statement of the
Committee of Conference to House Report 107-334. This statement calls
upon those calculating dropout rates to avoid counting dropouts as
transfers, and to follow student progress from the entry grade level
through twelfth grade. Another commenter stressed that for the drop-out
data on migrant students to be meaningful, SEAs would need to make sure
that LEAs understand which children are migrant under Federal
eligibility definitions.

[Response]{.underline}: We agree with the comments, although here, too,
we believe that the indicators should remain as simply stated as
possible and minimize the burden on local and State officials. We are
revising the indicator to make it consistent with the dropout data
currently collected by NCES and required by ESEA section 1907. As with
Indicator 5.1, we intend to discuss with State and local officials the
development and implementation of data collection methods that can
provide the data that NCES currently does not collect.

[Change]{.underline}: Indicator 6.2 (now 5.2) has been revised to read
as follows: "The percentage of students who drop out of high school --
disaggregated by race, ethnicity, gender, disability status, migrant
status, English proficiency, and status as economically disadvantaged --
calculated in the same manner as used in National Center for Education
Statistics reports on Common Core of Data." In addition, consistent with
ESEA section 1907, in developing their performance targets for Indicator
5.2 States will need to use NCES' definition of "high school dropout."

Appendix B: State Activities to Implement ESEA Programs.

[Comment]{.underline}:

[Item 1 -- (Title I, Part A accountability system)]{.underline}: A
number of commenters requested guidance on various issues relating to
the assessment system and AYP requirements in ESEA section 1111(b), and
to the reporting of baseline data. For example, a commenter asked
whether, with regard to baseline data to be reported for school year,
states without grade 3 data should instead provide grade 4 data, or
alternatively wait until grade 3 assessments are developed and
administered. Another asked, with respect by proposed item 1.i (evidence
that, by 2002-03, LEAs will provide assessment of English language
proficiency meeting the requirements of section 1111(b)(7)) whether the
State must mandate that LEAs use the same test, and whether the
statutory requirement applied to LEAs that do not receive Title II
funds.

Aside from questions of this nature, several commenters suggested ways
they believed would improve the quality of information SEAs would
provide in proposed items 1.h and 1.i on the assessments used under
section 1111(b)(3)(C) for limited English proficient students. One
commenter expressed concern about the possible practice of intentionally
excluding these students from State assessments. The commenter urged
that item 1 include a requirement that States identify their policies
regarding inclusion of limited English proficient students in these
assessments, as well as describe their procedures for ensuring
appropriate accommodations in addressing their unique linguistic needs.
In this regard, two commenters asserted that it is not feasible to have
tests simply translated into all other languages that students speak,
which one commenter said could be up to 150. Nor, the commenters said,
would these assessment results be valid unless the students were taught
in these other languages. The commenters also claimed that it is not
sensible to have students, who lack a level of English language
proficiency that is comparable to their English-speaking peers take
English language content-area tests.

Two commenters asserted that meeting satisfactory definitions of AYP
will be difficult, given factors such as immigration patterns, mobility
of students, and a nonexistent pool of highly qualified teachers. Many
commenters asked the Department to clarify when States will need to
submit their information regarding AYP and use of assessments.

[Item 2 -- Procedures for in-State competitions)]{.underline}: One
commenter recommended that the Department have States submitting
consolidated applications provide their "definition of terms," such as
"high-need LEA," that are key to the subgrant processes under individual
ESEA program statutes. Another commenter asked why the Title III, Part A
program (English Language Acquisition, Language Enhancement, and
Academic Achievement) is not included in list of programs for which
States must provide information on their process for making in-state
competitive subgrants.

In addition, one commenter recommended that States also provide a
"definition of terms" for [formula]{.underline} subgrants. The commenter
noted), for example, that for Title III, Part A and Title V, Part A
(Innovative Programs) States provide subgrants on the basis of "limited
English proficient" children and "greatest number or percentages of \...
high concentrations of economically disadvantaged families,"
respectively. Because States provide LEAs through formula subgrants with
by far the greater amount of ESEA funds, the commenter states that the
Department should have States clarify how they are interpreting these
terms reasonably.

[Item 3 -- State activities to monitor and provide professional
development and technical assistance]{.underline}: One commenter
recommended that we revise the text to clarify that States need to
describe how they provide professional development and technical
assistance, not how they monitor these activities. The commenter also
suggested that the item clarify what States are to monitor so that they
can better respond.

[Item 5 -- Overall effort to create a sound school
environment]{.underline}: One commenter recommended that the Department
have States describe how they will ensure that paraprofessionals
(excluding those working with parents or as translators) attain
qualifications required by section 1119(b) and (c) by the 2005-06 school
year. Another commenter recommended that the Department define "highly
qualified" as it applies to teachers.

[Response:]{.underline}

[Item 1]{.underline}. We understand that States, LEAs, and the public at
large are awaiting regulations and guidance from the Department on its
interpretations of AYP, assessments to be used for students who are
limited English proficient, and other provisions that are central to the
ESEA. The Department is in the process of developing the regulations and
guidance and will be providing them as quickly as it can. States should
be receiving the necessary guidance in time to prepare their
consolidated applications.

We agree with commenters who recommended that this item be revised to
clearly indicate the schedule for when States will need to provide
information. However, in examining the various information requirements
in Item 1, we do not believe that it needs to be expanded to include a
requirement that States identify their policies regarding inclusion of
LEP students in these assessments (or provision of appropriate
accommodations to them). We believe that items 1.j and 1.k of appendix B
now adequately address this issue by requiring States to provide
evidence that their accountability criteria are based on assessments
that are consistent with section 1111(b).

[Item 2]{.underline}. We agree with the commenter that States should
need to define key ESEA terms that play a role in the calculations they
make in awarding competitive subgrants under individual program. We have
inserted the phrase "definition of key ESEA terms" as one of the
descriptions SEAs will need to provide. Title III, Part A (English
Language Acquisition, Language Enhancement, and Academic Achievement) is
not included in the list of programs for which the State makes
competitive awards because, as we indicate in the discussion of comments
on appendix C: "Key Programmatic and Fiscal Information," we are instead
soliciting specific information abut the new competitive subgrant
component through specific information on that program.

We also agree that to the extent that the formula subgrants a State
makes depend on how it interprets terms in the ESEA program statutes,
the State should explain those interpretations in its consolidated
application. The Department has included this item in the individual
program information identified in appendix C.

[Item 3]{.underline}: We agree with the commenter's editing suggestions.
However, because grantees are responsible for monitoring the day-to-day
activities of their subgrantees, and may do so in a variety of ways
depending on the circumstances, we do not believe Item 3 or the
consolidated State application package should clarify how or what a
State should monitor.

[Item 5]{.underline}: We agree with the commenter's recommendation to
have States describe their plans for ensuring that paraprofessionals
become highly qualified by the 2005-2006 school year. The Department
will be issuing guidance soon on the definition in section 9101(23) of
"highly qualified" as applied to teachers.

[Other]{.underline}: In clarifying the dates when States need to submit
information identified in Item 1, we also have clarified a few other
items, particularly in relationship to statutory requirements. The final
statement of these requirements in appendix B of the *Federal Register*
notice announcing final requirements for consolidated applications
contains these revisions.

[Changes]{.underline}: Appendix B has been revise accordingly.

[Comment]{.underline}: None.

> [Response]{.underline}: As proposed, item 5a would require States to
> describe

the activities they will conduct to help Title I schools make effective
use of schoolwide programs to improve the achievement of all students.
ESEA section 1111(c)(10) contains a requirement that any State
submitting an individual Title I, Part A plan must include an assurance
that the SEA "will modify or eliminate State fiscal and accounting
barriers so that schools can easily consolidate funds form other
Federal, State, and local sources for schoolwide programs under section
1114." While this assurance does not need to be contained in a
consolidated State application, States submitting consolidated
applications still must implement the assurance.

Under the ESEA as previously authorized, SEAs had an affirmative
responsibility to encourage the use of Federal, State, and local funds
in schoolwide programs. Yet, many States have maintained fiscal and
accounting procedures that require schools and LEAs to maintain records
of expenditures made by or on behalf of schoolwide programs on a
program-by-program basis. These procedures have acted as the very
barriers that have prevented schools from exercising the flexibility
that they were intended to have and, we believe, have thereby inhibited
the ability of school administrators and teachers in these schools to
use the Title I, Part A schoolwide authority increase the achievement of
all students in the school.

Upon considering this matter further, we have determined that States
submitting consolidated applications need affirmatively to address the
removal of State fiscal and accounting barriers as part of their
application. The Department also is considering having States annual
report on their success in removing these barriers.

> [Change]{.underline}: Item 5a has been revised to require a
> description of

the activities the State will conduct to help Title I schools make
effective use of schoolwide programs to improve the achievement of all
students, including specific steps the SEA is taking and will take to
modify or eliminate State fiscal and accounting barriers so that schools
can easily consolidate Federal, State, and local funds for schoolwide
programs.

## **Appendix C: Key Programmatic and Fiscal Information**

Appendix C identifies the program-specific information the Department
needs to review in order to ensure programmatic and fiscal integrity
before awarding FY 2002 funds this July to SEAs seeking funding on the
basis of a consolidated application. Most of the comments we received on
the content of this appendix concerned our specific proposals for
information under particular programs.

### 

### Part I -- Programmatic descriptions

[General Issues]{.underline}

[Comment]{.underline}: One commenter asserted that not all States are
ready to implement the reauthorized ESEA, and hoped the Department would
both recognize an SEA's "good faith" efforts to comply with it, and
permit each State to maintain the integrity of its own educational
system.

[Response]{.underline}: We do not anticipate that any State will have
difficulty providing the requested information for consolidated
applications by this June. Given the January 2002 enactment of NCLB, we
are issuing these final requirements later in the year than we had
hoped. However, by June SEA officials and staff will have had five
months to study the programs' planning and application requirements,
only a small portion of which must be addressed in the consolidated
application. Moreover, the Department will be working with all States to
ensure that none encounters a disruption in program funding this July.

The ESEA requires that States receiving ESEA funds take certain specific
steps to ensure that they are accountable for increasing student
achievement. Our requirements for consolidated applications are tailored
to help all of us see that States, LEAs, and schools succeed in doing
so. Subject to requirements of the ESEA, however, States have the
flexibility to develop and implement their own strategies for ensuring
the academic success of all students and thus for ensuring the integrity
of their own educational systems.

[Change]{.underline}: None.

[Title I, Part A: Improving Basic Programs Operated by Local Educational
Agencies]{.underline}

[Comment]{.underline}: One commenter urged the Department to require
States to describe key strategies for ensuring that limited English
proficient students are learning English and making AYP. The commenter
emphasized that large numbers of LEAs do not use Title I funds for
English language acquisition, and that the Department, therefore, should
collect these data.

[Response]{.underline}: The thrust of the Department's approach to
consolidated State applications is that the application and, later, the
consolidated performance report will be used to hold States accountable
for increased student achievement. The application is not a planning
document. States are free to design strategies that address issues like
the one this commenter addresses. We do not need to know these specific
plans at this time. What we do need to know are the results for which
States will hold themselves accountable.

This is not to say that the Department will refrain from collecting
information on the strategies States are implementing to ensure that
limited English proficient students are learning English. Aside from
program monitoring, we note, for example, that ESEA section 6161
requires the Department to review whether States have made AYP under
Title I, Part A, and met annual measurable achievement objectives for
limited English proficient students established under section 3122(a) of
Title III, Part A. Section 6162 goes on to require that where a State
has failed to make AYP for two consecutive years, the Department must
convene a peer review process to review data from State assessments and
the data from the Title III evaluations conducted under section 3121. In
the context of this peer review process, the Department likely would be
examining the strategies that a State has put in place.

[Change]{.underline}: None.

[Comment]{.underline}: None.

[Response]{.underline}: In the fiscal information we had proposed that
States submitting consolidated applications address for this program,
item a.iii would have had SEAs describe their procedures for
distributing funds for schools to use for supplemental services under
ESEA section 1116(e)(7), and the amount of funds that those schools
would receive. This statement is incorrect. LEAs, not SEAs, distribute
funds to schools for supplemental services.

[Change]{.underline}: The item had been revised so that States describe
how they will inform LEAs of the procedures LEAs must use to distribute
funds for schools to use for supplemental services, and the procedures
for determining the amount they will use for this purpose.

[Title I, Part C: Education of Migrant Children]{.underline}

[Comment]{.underline}: One commenter focused on the issue of assessments
(2.b), emphasizing the desire to have migratory students who reside in a
"receiving State" during its assessment period be tested in conformity
to the assessment of that student's "home State." The commenter
emphasized that a policy of this kind would ensure that the services
that migratory students receive in the receiving State better focus on
credit accrual and graduation from high school in the student's home
State. Another commenter urged the Department to prohibit LEAs from
combining program funds with funds from other programs, in what we
presume would be Title I, Part A schoolwide programs.

A third commenter expressed concern that, as drafted, paragraph (b)
could be misconstrued as permitting migrant education program funds to
be used to help all students, rather than only migratory students, meet
State performance targets. The commenter also recommended that the
proposed description regarding State efforts to promote continuity of
education and interstate and intrastate coordination of services for
migratory students (paragraph (d)) be expanded to include the
development of reciprocal assessment agreements between States that
would help local operating agencies in developing instruction aligned
with those agreements.

[Response]{.underline}: We agree with the need to clarify that program
funds must be used to provide needed services to migratory students
rather than as general aid. We believe that the other comments raise
policy concerns that should be addressed in policy guidance or
regulations, rather than in required content of a consolidated State
application.

[Change]{.underline}: Paragraph (b) has been revised to clarify that the
description of the State's priorities for use of program funds must
focus on having migratory students meet the State's performance targets.

[Title II, Part D: Enhancing Education Through Technology]{.underline}

[Comment]{.underline}: One commenter urged us to require States that
include this program in their consolidated applications to include in
those applications: (1) their updated, statewide, long-term educational
technology plan as required by ESEA section 2413(a); (2) an outline of
State activities for increasing and tracking student achievement,
including activities in meeting standards for technological literacy;
and (3) strategies for professional development that are more efficient
and less costly because of the use of technology.

[Response]{.underline}: We do not believe that the Department needs to
review this information before making FY 2002 awards in order
effectively to ensure integrity of program funds. States will need to
implement these statutory operational requirements and keep records that
the Department will be able to review as it works with States on how
their use of program funds, in fact, supports improved academic
instruction and performance. In the Assurances section of the
application package, we have asked for an assurance that the SEA has a
State Plan for Educational Technology that meets all of the provisions
of section 2413. And appendix C requires that each State provide a brief
summary of the SEA's long-term strategies for improving student
achievement through the integration of technology into the curriculum.
We are satisfied that the programmatic items we had proposed States
include in their consolidated application are adequate for our immediate
purposes.

[Change]{.underline}: None.

[Comment]{.underline}: None.

[Response]{.underline}: We have withdrawn, from the core ESEA
performance indicators, the proposed indicators that addressed use of or
proficiency in technology. However, we recognize that it is important
for SEAs to know whether their use of program funds is achieving results
associated with increased students achievement. Therefore, we have
determined that SEAs will need to describe their goals and performance
indicators for assessing whether the program is succeeding.

[Change]{.underline}: Consistent with ESEA section 2414(b)(2) and (4),
we have included in appendix C a new requirement that SEAs describe the
goals, performance indicators, performance objectives and data sources
they use to assess the effectiveness of this program in improving the
access to and use of educational technology by students and teacher in
support of academic achievement.

[Title III, Part A: English Language Acquisition, Language Enhancement,
and Academic Achievement]{.underline}.

[Comment]{.underline}: One commenter noted that, as proposed, States
would need to specify the amount of program funds they will reserve for
Title III subgrants to school districts that have experienced a
significant increase in the percentage or number of immigrant students.
The commenter urged the Department to require States also to describe
the process they will use in making these subgrants to ensure that
States meet the programmatic criteria specified in section 3114(d).

Commenters also asked for clarification about various aspects of the
process States are to use in distributing immigrant and/or limited
English proficiency State subgrants. For example, several commenters
expressed confusion about whether States will make subgrants on a
formula or competitive basis. One commenter asked where his small rural
State would get the resources to (1) take into account the needs of
urban and rural LEAs and LEAs with significant increases in percentages
of immigrant children, (2) implement the kinds of comprehensive
professional development and evaluations that are required activities
under Title III, and (3) ensure that all subgrants are of sufficient
scope to meet Title III purposes. This commenter also asked about
expectations for project implementation if, given the number of small
rural LEAs with perhaps insufficient numbers of eligible students,
subgrants must be at least \$10,000 to ensure that projects are of
sufficient size and scope to carry out high-quality language instruction
educational programs. Finally, one commenter asked about the scope of
activities that a State should describe regarding the five percent of
its allocation reserved for state activities.

Response: The Title III, Part A program is now, for the first time, a
State formula grant program in which the SEA will award formula
subgrants to LEAs. Hence, we are not surprised that the public comment
process generated so many questions about program implementation. ESEA
section 3114(d) authorizes a State, at its discretion, to award
subgrants on either a formula or competitive basis to LEAs that have
experienced a significant increase in the percentage or number of
immigrant children and youth. States must award subgrants under section
3114(a) on a formula basis relative to the number of limited English
proficient students in schools served by the subgrantee.

We agree with the comment that the application should focus attention on
the subgrant process and, consequently, have added to appendix C an
additional required description. The five percent for State-level
activities encompasses professional development and technical assistance
for subgrantees.

[Change]{.underline}: The proposed descriptions in appendix C have been
revised to include the following new description: "Describe the process
that the State will use in making subgrants under section 3114(d) to
eligible entities that have experienced a significant increase in the
percentage or number of immigrant children and youth."

[Comment]{.underline}: A number of commenters raised implementation
questions that might bear on the descriptions they would include in
their consolidated applications. For example one questioned the ability
of anyone to predict how long a child would need to participate in a
language instruction educational program before she or he is able to
perform at a level comparable to native English speaking peers. The
commenter stressed that research in this area consistently indicates
that a minimum of five to seven years may be needed for limited English
proficient students to be able to perform at a level comparable to their
English speaking peers. Still another commenter asked about a
requirement that those providing language instruction to limited English
proficient students be certified as fluent in English, and questioned
why these individuals would not also need to be certified in bilingual
education or English a Second Language (ESL), in order to ensure that
LEAs do not hire unqualified or underqualified staff to serve limited
English proficient children.

[Response:]{.underline} The questions that these commenters have raised
will be the subject of program guidance that the Department intends to
issue soon. We do note, however, that ESEA section 3302 does not require
an LEA to predict for the parents of a particular limited English
proficient child the length of time the child will need to participate
in a language instruction educational program to become proficient in
English. The information an LEA provides to parents must instead include
the general expected rate of transition from such a program into
classrooms that are not tailored for limited English proficient
children. In addition, section 3116(c) requires teachers in a Title III
language instruction educational program for limited English proficient
children to be fluent in English [and]{.underline} any other language
used for instruction. Beyond this, States -- not the Federal government
-- establishes teacher certification requirements.

[Change]{.underline}: None.

# Title IV, Part A, Safe and Drug-Free Schools and Communities

[Comment]{.underline}: None.

[Response]{.underline}: While we have withdrawn from the core ESEA
performance indicators those proposed indicators for former Goal 5 that
had addressed percentage of students who carried weapons, engaged in
physical fights, or engaged in illicit drugs while on school property,
we recognize the importance of data in these areas, as well as SEAs
knowing whether this program is succeeding. Therefore, consistent with
their statutory responsibilities under ESEA sections 4112(c)(3) and
4113(a)(10), we have determined that each SEA will need to describe (1)
the State's steps to implement the Uniform Management Information and
Reporting System, and (2) its performance measures for drug and violence
prevention activities this program funds.

[Change]{.underline}: Accordingly, we have included in appendix C two
new requirements for State descriptions under this program.

[Title IV, Part B, 21^st^ Century Community Learning
Centers]{.underline}

[Comment]{.underline}: One commenter recommended that because SEAs will
only begin making competitive subgrants this year, the Department should
require them to submit more information on the program. The commenter
suggested inclusion, for example, of: (1) information on how the SEA
would ensure that local projects are of sufficient size, scope, and
quality, and (2) steps the SEA will take -- *e.g.*, technical
assistance, training, and evaluation -- to ensure that funded projects
use effective strategies. The commenter also recommended that the
Department require specific assurances in special areas, including
"supplement, not supplant," fulfillment of transportation needs,
selection of appropriate participants, and consultation with
stakeholders in developing the program application.

[Response]{.underline}: We will collect information on the subgranting
process through questions 3 and 7 of appendix B. The consolidated State
application highlights a number of key program requirements that are
covered by the SEA assurances, including those the commenter has noted.
Beyond these points, the Department continues to provide technical
assistance to SEAs in all aspects of their new responsibilities to
ensure lawful and effective implementation of the program.

[Change]{.underline}: None.

[Comment]{.underline}: None.

[Response]{.underline}: In reviewing the proposed descriptions in
appendix C of information that the Department will need to review this
June before awarding FY 2002 program funds, we discovered that we had
omitted a necessary description for the 21^st^ Century Community
Learning Centers program. We need States that choose to include this new
formula grant program in their consolidated applications to provide the
percentage of students who participate in the 21st Century Community
Learning Centers meeting or exceeding the proficient level of
performance on State assessments in reading and mathematics, along with
baseline data for the 2002-2003 school year.

The Department's program office staff discussed this proposed
requirement with their SEA staff counterparts at a meeting on April
9-10, where they were told that the requirement is reasonable and
acceptable.

[Change]{.underline}: We have added to the required program descriptions
in appendix C the following description:

> "Identify the percentage of students that participate in the
>
> 21st Century Community Learning Centers meeting or exceeding the
> proficient level of performance on State assessments in reading and
> mathematics. States must collect baseline data for the 2002-2003
> school year, and submit all of these data to the Department no later
> than early September of 2003 by a date the Department will announce."

[Title VI, Part B, Subpart 2, Rural and Low-Income Schools,]{.underline}

[Comment]{.underline}: None.

[Response]{.underline}: In reviewing the descriptive information that we
had proposed in the March 6 *Federal Register* notice that States
submitting consolidated application would need to address, we found we
had omitted an important accountability element. This is information on
specific State measurable goals and objectives and how the program funds
will help SEAs to meet them, information that ESEA section 6223(b) would
require States to address in a program-specific application.

[Change]{.underline}: We have included this item in the program-specific
information that States choosing to include this program in a
consolidated application will need to provide.

####### Part II -- Fiscal information

[Comment: Title II, Part A: Teacher and Principal Training and
Recruiting Fund]{.underline}. We received several comments on our
proposal to resolve the statutory ambiguity about the amount of program
funds that the SEA and State agency for higher education (SAHE) each
should have available for administration and planning. SAHEs require
sufficient funding to administer the competitive partnership program
described in ESEA sections 2131-2134, as well as to monitor the
partnership grants and conduct other administrative functions. Under our
proposal the SEA and SAHE would have determined together how much of the
one percent of program funds available to the State for administration
and planning each agency would receive. In the absence of the two
agencies' agreement, the Department proposed that it would not release
any of these funds to either agency.

Nearly all commenters urged the Department to establish an amount that
the SAHE must receive for administration and planning. Some stated that
failure to do so would complicate SEA--SAHE working relationships at a
time, so soon after enactment of NCLB, when they need in an unencumbered
way to begin working collegially and comprehensively to design ESEA
programs that will improve teacher quality. Commenters offered different
opinions on what formulation the Department should apply to determine
the amount of administrative funds a SAHE should receive. Some urged
that the SAHE receive at last the amount it had received in FY 2001
funds for administration under the former Eisenhower Professional
Development Program (5 percent of the SAHE's allotment). Others urged
that the SAHE receive at least five percent of the funds available to it
under the new law for institution of higher education (IHE)-high-need
LEA partnerships under ESEA sections 2131-2134.

We also received two comments that urged us to provide little if
anything for the SAHE. One recommended that both the SEA and SAHE
receive for administration and planning one percent of its separate
allotment under Title II, Part A. The other objected to our proposal as
unprecedented, and asserted what the commenter believes is the SEA's
right, as the program applicant under ESEA section 2112, to receive the
entire one percent of funds available to the State for administration
and planning.

Finally, several commenters also urged the Department to continue its
practice of providing separate grant awards to the SEA and SAHE.

[Response]{.underline}: While section 2112(a) makes the SEA the
applicant for Title II, Part A funds, this provision does not mean that
the SEA is thereby entitled by law to receive the entire one-percent
allotment for administration and planning that ESEA section 2113(d)
provides for use by "a State educational agency or State agency for
higher education." As we explained in the March 6 *Federal Register*
notice (67 FR 10174), we proposed the rule for the very reason that the
ESEA is silent on how the one percent of the State's funds available for
administration and planning is to be divided between the two agencies.
Upon review of the comment received, we agree with the recommendation of
the vast majority of commenters that the SAHE be assured a reasonable
amount of the funds for administration and planning without the need for
negotiating an agreement with the SEA.

Giving the SAHE one percent of its allotment, as one commenter
recommended, would clearly provide that agency insufficient program
funding to administer the required competitive grant process and monitor
projects that it funds. In reviewing the other two principal
recommendations, we discovered that the amount of FY 2002 funds that
most SAHEs would receive varied little regardless of whether it receives
for administration and planning (a) five percent of its allotment under
Title II, Part A. For most States, or (b) the amount of FY 2001 funds
available to it for administration under the former Eisenhower
Professional Development program. A few SAHEs, however, faired
significantly better under one approach or the other. Regardless of
amount, these differences are small relative to the amount left to the
SEA for its administrative and planning activities.

We believe it is important that a SAHE have enough funds to properly
plan, administer, and monitor the subgrants it makes to eligible
IHE--high-need LEA partnerships, and are concerned that selection of
either option may have unintended consequences on its ability to do
this. On balance, and so that the amount of SAHE funds is not locked in
future years to the amount of FY 2001 funds that agency received for
administration under the former Eisenhower program, we have determined
that the SAHE must annually receive for administration and planning, at
minimum, the greater of the amounts generated by these two formulations.
Unless we learn that the SEA and SAHE in a State have agreed that for
any particular fiscal year the SAHE should receive a different amount,
we will provide the SAHE this minimum amount for administration and
planning out of the one percent that section 2113(d) makes available to
both agencies.

In addition, the Department intends to continue its practice of
providing separate grant awards to the SEA and SAHE.

[Change]{.underline}: The Department withdraws its proposal that, before
releasing any administrative funds to either the SEA or SAHE, it receive
an agreement between these two agencies on the split of Title II, Part A
funds available to each for administration and planning. Instead, after
examining this matter, the Department has determined that, absent
receipt of written confirmation of an agreement between the two agencies
to the contrary, it will provide the SAHE the greater of---

1.  Five percent of one percent of the State's share of Title II, Part A

> funds that Congress has appropriated each year for the program, or

2.  The amount of FY 2001 funds that the SAHE received for

> administration under the Eisenhower Professional Development State
> Grants program.

In addition, the SEA and SAHE may, by mutual agreement, make provide for
a greater or lesser amount for the SAHE's costs for administration and
planning.

[Title III, Part A -- English Language Acquisition and Language
Enhancement]{.underline}

[Comment]{.underline}. Several commenters urged the Department to
retract its proposal to use data from the 2000 Census to calculate State
shares of funding for limited English proficient students. They argued
that State-generated data were more reliable than Census data since they
reflect individual State determinations of which students meet the
definition of limited English proficient. The commenters noted that
Census data, on the other hand, which would soon be too old to be
accurate, do not represent a direct measure of English proficiency.
Instead, the Census data represent the number of persons who speak a
language other than English at home and the respondent's opinion of how
well the person speaks English. Hence, commenters stress their belief
that use of the Census data to make Title III, Part A allocations would
(1) not provide as accurate a count of the actual number of these
children as would State reported data, and (2) thereby result in
inequitable allotments to States.

[Response]{.underline}: ESEA section 3111(c)(4)(B) establishes a special
rule for determining the amount of program funds to provide to each
State. This provision directs the Secretary, in the first two years
after enactment of NCLB, to "determine the number of limited English
proficient children in a State and in all States, and the number of
immigrant children and youth in a State and in all States, using data
available from the Bureau of the Census or submitted by the States to
the Secretary."

In the March 6 notice proposing requirements for consolidated State
applications, we explained our proposal to use data from the 2000 Census
to calculate State shares of limited English proficient students.
Because those data would not be available until September 2002, we also
proposed to\--

1.  Provide an initial distribution this July of 50 percent of the

> funds under the limited English proficient portion of the program
> formula based on State-reported data, and

2.  Recalculate and make final State allocations using Census data as
    soon as Census data become available.

While we have carefully considered the public comment, we have decided
to adopt our proposal based upon our determination that the Census data
will provide a more equitable basis for distributing these funds. A 1994
report by the Council of Chief State School Officers, [The Feasibility
of Collecting Comparable National Statistics about Students with Limited
English Proficiency]{.underline}, found that State data collection in
this area is complicated not only by variation in State definitions of
limited English proficiency, but also by variations in State
identification procedures and data collection methods and purposes.
Census data, on the other hand, are uniformly collected across the
States, and any Census error on the count of limited English proficient
children would affect all States equally. A 2000 report by the Center
for Equity and Excellence in Education at The George Washington
University, [An Analysis of State Policies for the Inclusion and
Accommodation of English Language Learners in State Assessment Programs
during 1998-1999]{.underline}, similarly concluded that "without a
common operational definition and specific guidelines, the process of
identifying ELLs \[English Language Learners\] is subject to
inconsistency across and within States."

Moreover, the Department of Health, Education, and Welfare began an
effort with the Census Bureau in 1979 that continued through 1982 to
determine the validity of responses to the language question. Census
administered a short test of English proficiency and determined that the
assessment results correlated closely to the response to the Census
language question. In 1980 and 1990 the total number of school-aged
children who were reported on the Census to speak a language other than
English at home and to speak English less than very well was close to
the aggregate total of students that States reported to be limited
English proficient. However, individual State totals often differed
significantly from Census totals.

For all of these reasons, we conclude that the Census data will provide
the more equitable basis for determining State allotments of Title III,
Part A funds. We will use Census data, in addition to State-reported
data, in determining State allotments for FYs 2002 and 2003, as
authorized in section 3111(c)(4). To the extent that year 2000 Census
data will be too old to be accurate for subsequent years, the law
requires the Department to use other data sources for FY 2004 and
beyond.

[Change]{.underline}. None.

[Comment]{.underline}: One commenter noted that appendix C requires
States to specify the amount they will reserve for Title III, Part A
subgrants to LEAs that have experienced significant increases in the
percentage or number of immigrant students. The commenter urged the
Department to require States to include also a description of the
process they will use in making these subgrants to ensure that States
meet the programmatic criteria specified in section 3114(d).

[Response]{.underline}: We agree with the comment.

[Change]{.underline}: We have added the following requirement that
States including Title III, Part A in their consolidated State
application must address: "Describe the process that the State will use
in making a subgrant under section 3114(d) to eligible entities that
have experienced a significant increase in the percentage or number of
immigrant children and youth."

# **Appendix D: Assurances**

[Comment]{.underline}: Several commenters recommended specific
assurances of compliance with important individual program requirements
that they believe State officials should provide in their consolidated
applications.

[Response]{.underline}: The application package reminds State officials
of some of the particularly important programmatic requirements to which
they are agreeing to comply when they agree to the general assurances in
Title IX of the ESEA.

[Change]{.underline}. None.

## 

## 

## **Other Considerations** 

1\. [Designation of other programs]{.underline}

[Comment]{.underline}: One commenter recommended that the Secretary
designate the Education for Homeless Children and Youths program (Title
VII, subtitle B of the McKinney-Vento Homeless Assistance Act) for
inclusion in a consolidated State application since services are often
co-funded with Title I, Title II, and Title V. Another commenter
recommended designation of the Reading First program since the program
statute (Title I, Part B, Subpart 1) has so few individual program
application requirements.

[Response]{.underline}: Neither of these two programs are "covered
programs" as the term is defined in ESEA section 9101(13), and so are
not ones that ESEA section 9302(a) directs the Secretary to permit
States to include in their consolidated State applications. With regard
to the Education for Homeless Children and Youths program, given the
severe, special educational needs of homeless children we are concerned
that inclusion of the program in a consolidated State application might
tend to obscure the very special attention that this population so
greatly needs. The Reading First program is a critical new program at
the heart of the NCLB strategy for ensuring that all children are
proficient in reading by the third grade. We need to ensure that States
implement program activities on the basis of the kind of deliberate
planning that the law requires. Accordingly, the Secretary has decided
that it is more appropriate for States to prepare and submit individual
program applications for funding under these two programs.

[Change]{.underline}: None.

#  2. Access to SEA records of compliance with ESEA requirements

[Comment]{.underline}: In section V of the March 6 notice (67 FR 10168)
("Documentation of Compliance With All Program Requirements"), we
explained that submission of a consolidated State application would not
relieve an SEA or LEA of responsibility to comply with all program
requirements, both (1) those the ESEA expresses as descriptive content
or specific assurances to be included in individual program plans or
applications, and (2) those that otherwise govern program planning,
public input, implementation, or evaluation. We concluded by stating
that "\[t\]o the extent consistent with State 'open records' statutes,
these documents evidencing adherence to ESEA requirements would be
available to parents, policymakers, and other members of the pubic."

Several commenters strongly urged us to revise this last statement.
Expressing concern about gaining access to these documents, commenters
urged us instead to state that the documents will be available to the
public either under the Freedom of Information Act (FOIA) (5 U.S.C.
552), or to the same extent as Federal records and documents are
available to the public under FOIA (unless State open records statute
provide greater access).

[Response]{.underline}: We cannot adopt these recommendations. First, on
its own terms FOIA does not apply to records held by State agencies.
Moreover, we are unaware of any Federal statute that confers on the
Department authority, through rulemaking or otherwise, to require States
to provide public access to these records. In this regard, Department
regulations in 34 CFR 80.42 govern all financial and programmatic
records, supporting documents, statistical records, and other records of
grantees and subgrantees which are maintained to demonstrate compliance
with Federal requirements. (See section 80.42(a).) Paragraph (f) of this
regulation provides not only that FOIA does not apply to records
maintained by grantees or subgrantees, but that "\[u\]nless required by
Federal, State, or local law, grantees and subgrantees are not required
to permit access to their records."

We do favor the public's ability to work with the SEA effectively to
implement ESEA requirements in ways that will achieve results, and to
participate actively in dialogue with the SEA in how it is doing so.
However, the public's access to documentation the SEA maintains of its
compliance with ESEA requirements is, as we stated, subject to State
open records laws, not FOIA or other Federal requirements.

[Change]{.underline}: None.

[Comment]{.underline}: A number of commenters asked that we clarify what
we mean when we say that the SEA that has submitted a consolidated State
application must still comply with all program requirements.

[Response]{.underline}: We agree that further clarification would be
useful.

[Change]{.underline}: Both the *Federal Register* notice containing
final application requirements and the application package contain this
clearer explanation.

3.  [Public participation requirements]{.underline}

> [Comment]{.underline}: One commenter questioned whether the various

requirements that govern public and stakeholder participation in the
development of individual ESEA program plans or applications govern
development of the portions of the consolidated application that pertain
to those programs. Another commenter recommended that we require States
to adopt procedural requirements for public participation that are at
least as protective as those in the Administrative Procedures Act.

[Response]{.underline}: ESEA section 9304(a)(7) requires an SEA that
submits a consolidated State application to have on file with the
Secretary a set of general assurances (contained in appendix D to the
*Federal Register* notice). One of these assurances is that "before the
plan or application was submitted to the Secretary, the State afforded a
reasonable opportunity for public comment on the plan or application and
considered such comment." We interpret this assurance as superseding, as
far as development of the consolidated application goes, the public and
stakeholder participation requirements that govern development of
individual ESEA program plans or applications. However, while not
applicable to development of the consolidated application
[per]{.underline} [se]{.underline}, those public and stakeholder
participation requirements of individual program still govern the SEA's
implementation of all applicable operational program requirements.

We decline to extend the kinds of protections that Congress has offered
the public in the Administrative Procedures Act to the reasonable
opportunities that States must offer the public to comment on the
State's proposed consolidated application. We know of no statutory
authority for this kind of requirement, and believe that the procedures
for ensuring the public a reasonable opportunity to comment are best
left to the very State governments whose State agencies are responsible
for preparing these applications. Of course, given section the language
of 9403(a)(7), a State that has no procedures for receiving and
considering public comment, must develop and implement them.

[Change]{.underline}: None.

4\. [Local consolidated plans or applications]{.underline}

[Comment]{.underline}: In section XII of the March 6 notice (67 FR
10169) ("Consolidated Local Plans or Applications"), we explained that
section 9305(a)--(d) contain provisions authorizing LEAs to receive
their own ESEA funding on the basis of consolidated local plans or
applications. We also stated that these provisions require the SEA, in
consultation with the Governor, to establish procedures for submission
of these plans or applications, and that these procedures could mirror
the kinds of requirements and procedures we have established for
consolidated State applications. One commenter urged us to stress the
requirement of section 9305(d) that the SEA "shall require only
descriptions, information, assurances, and other material that are
absolutely necessary for the consideration of the \[LEA\] plan or
application."

[Response]{.underline}: We agree with the comment. We note, however,
that the SEA (in consultation with LEAs and the Governor) determines
what is "necessary for the consideration of the plan or application"
within both the State context for the application, and the overall broad
purpose that ESEA section 9301establishes for any consolidated local
plan or application:

a.  To improve teaching and learning by encouraging greater
    cross-program coordination, planning, and service delivery;

b.  To provide greater flexibility to State and local authorities
    through consolidated plans, applications, and reporting; and

c.  To enhance the integration of programs under \[the ESEA\] with State
    and local programs.

[Change]{.underline}: Language to this effect has been added to the
*Federal Register* notice of final consolidated application requirements
and included in the application package.

5\. [Consolidated reporting]{.underline}

[Comment]{.underline}: One commenter noted that the data collection and
management capabilities of SEAs and LEAs are currently insufficient to
meet fully the NCLB's data analysis and reporting requirements. While
expressing the view that the some large LEAs view the data management
approaches that the Department has been highlighting in a variety of
forums as inadequate, the commenter agreed with us that further
consultation is needed and recommended substantial involvement of LEA
officials with expertise in this area, as well as SEA officials.

[Response]{.underline}: We agree with the comment.

[Change]{.underline}: None.

6\. [Program implementation]{.underline}

> [Comment]{.underline}: A number of commenters used the public

comment process to ask questions about how one or more ESEA programs
should be implemented, or what the ESEA statutory provisions for these
programs mean.

[Response]{.underline}: For the most part this discussion of public
comment does not address these comments. We intend to address them in
guidance that we are now preparing, and will issue as soon as possible.

[Change]{.underline}: None.

7\. [Regulatory Flexibility Act Certification]{.underline}

[Comment]{.underline}: The March 6 *Federal Register* notice contained
the Secretary's certification that the proposed requirements (1) would
not have a significant economic impact on a substantial number of small
entities, affect SEAs, and (2) are minimal and necessary to ensure
effective program management. We received one comment that took issue
with this certification, and asserted that the data collection and
reporting requirements in the proposed ESEA system of accountability
would create significant impact on a substantial number of small LEAs
that are not now equipped to gather the data that the performance
indicators contemplate.

[Response]{.underline}: We do not agree with the comment. Nearly all who
commented on our proposed system of accountability said that their
States either were already collecting these data, or could do so if they
could first report baseline data for the 2002-2003 school year. We have
agreed to delay submission until September 2003 of these baseline data
unless the ESEA requires submission of data for an earlier baseline
year. Moreover, as explained in response to comments on the proposed set
of core performance indicators (appendix A) the ESEA already requires
LEAs to collect data relative to nearly all of the indicators that we
have required States submitting consolidated applications to adopt.

Finally, while a State that submits a consolidated application will need
to submit its statewide performance targets and baseline data relative
to its selected performance targets, it may use reasonable and reliable
sampling techniques to collect these data, and thereby minimize any
impact on small LEAs.

[Change]{.underline}: None.

# **Appendix E -- Enhanced Assessment Instruments Competitive Grant Program (Title VI, section 6112) -- Program Information and Proposed Selection Criteria** 

[Comment]{.underline}: None

[Response]{.underline}: In reviewing the content of our proposed
competitive preferences, we discovered that the largest of the three,
for "alternative assessments" had omitted important language needed to
ensure that these assessments are appropriate vehicles for assessing
students with disabilities or limited English proficiency.

[Response]{.underline}: We have revised the statement of final
competitive preference to add language emphasizing the importance of
applications that can be expected to advance practice significantly in
the area of increasing accessibility and validity of assessments of
these two groups.

Appendix F -- Optional Interim Application for FY 2002 Funds Under the
Safe and Drug-Free Schools and Communities State Grants Program (Title
IV, Part A, Subpart 1)

[Comment]{.underline}: None.

[Response]{.underline}: Our proposal would have had States that choose
to apply for FY 2002 program funds through the optional interim
application submit data relative to the core ESEA performance indicators
we had proposed that States submitting consolidated applications adopt.
The final set of core performance indicators reflects a number of
changes from those we had proposed.

[Change]{.underline}: The content of the optional interim application
has been revised to reflect the final set of performance indicators that
States submitting consolidated applications must adopt.