> December 17, 2004

The Honorable Eugene Hickok

Deputy Secretary of Education

U.S. Department of Education

400 Maryland Avenue, SW

Washington, D.C. 20202

Dear Secretary Hickok:

I am writing once again regarding the Department of Education's recent
determination that North Dakota's elementary teacher requirements do not
meet the "highly qualified" criteria under the No Child Left Behind
(NCLB) Act. Specifically, I believe that 1) the Department
misinterpreted the statute passed by Congress, 2) due to this
misinterpretation, the Department unnecessarily delayed informative
guidance to states that would have prevented this situation, and 3) the
Department was aware of this impending problem due to a report conducted
by the General Accounting Office in July 2003 that indicted the
Department for this lack of guidance.

First, I believe the Department misinterpreted the statute passed by
Congress with regards to its responsibilities in assisting states
implement the highly qualified teacher provision. As you know, the
statute required that the state submit its "highly qualified" teacher
plan for all North Dakota teachers to the Department "as part of the
\[consolidated state Title I\] plan described in Section 1111 \[of the
Act\]," thereby recognizing that implementation of this provision under
NCLB is inextricably linked with the state's overall plan to improve
student performance in Title I schools. In compliance with this statute,
North Dakota submitted its highly qualified teacher definition to the
Department in May 2003 as a component of its consolidated state
application.

The Department, in turn, was statutorily required to "approve \[the\]
State plan \[under Section 1111 of the Act\] within 120 days of its
submission." Indeed, while the teacher quality definition requirements
are delineated in Section 9101 (23), Section 1111 has a provision
requiring North Dakota to describe, as part of its consolidated state
application, the steps it intends to take to ensure that "schoolwide
\[Title I\] programs and targeted assistance \[Title I\] schools provide
instruction by highly qualified instructional staff," a requirement that
cannot be fulfilled without first determining the state's criteria for
what defines a "highly qualified" teacher. The Department is therefore
implicitly required, under the statute, to provide feedback within 120
days about whether the state's method for evaluating teachers' subject
area knowledge comports with requirements in the law.

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Second, due to this statutory misinterpretation, the Department
unnecessarily delayed informative guidance to North Dakota that could
have prevented the current situation. Instead, in the months following
submission of the consolidated state plan, the Department decided to
divorce the teacher quality component from the state application and
prioritize reviewing and approving the rest of the plan. Indeed, while
the Department thoroughly examined North Dakota's plan for increasing
student proficiency, making clear the steps required, timelines and
review schedules for final approval, it failed to provide any indication
that the teacher quality component did not meet its requirements until
December 2004, over a year and a half after the plan was submitted.

This occurred despite requests made by the North Dakota Education
Standards and Practices Board (ESPB) and my office in 2003 that the
Department advise us of any problems and approve the teacher quality
plan in writing if it met its criteria. We were repeatedly told that the
Department would not be "approving" the teacher quality plan, and we
received no indication that North Dakota's plan in this regard was not
in compliance with the law. In fact, when Deputy Secretary Eugene Hickok
visited the state in November 2003, he suggested that ESPB was not
utilizing the full extent of its flexibility under the law. During its
visit in February 2004, the Department's Teacher Assistance Corps
--which has as its mission to explain requirements in the law and answer
policy questions-- lauded North Dakota as a model for others to follow.

Third, the Department was aware of this impending problem due to a
report conducted by the U.S. General Accounting Office (GAO) that
indicted the Department in July 2003 for its lack of useful guidance.
Entitled, "No Child Left Behind: More Information Would Help States
Determine which Teachers are Highly Qualified," published just two
months after North Dakota submitted its definition of "highly
qualified," the report concluded:

> *"In order to assist states' efforts to determine the number of highly
> qualified teachers they have and the actions they need to take to meet
> the requirement for highly qualified teachers by the end of the
> 2005-06 school year, we recommend that the Secretary of Education
> provide more information to states. Specifically, information is
> needed about methods to evaluate subject area knowledge of current
> teachers."*

As a result of North Dakota's detrimental reliance on the Department's
good faith promise that the teacher quality plan was acceptable, the
state is now in a far worse position than if it had received notice of
this determination a year and a half ago. Given the fact the Department
shirked its responsibility to provide timely and informative guidance to
the state in this regard, I believe it is now incumbent on the
Department to ameliorate the situation.

I appreciate this opportunity to share my views, and I look forward to
hearing from you soon.

Sincerely,

EARL POMEROY

Member of Congress