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# **UNITED STATES DEPARTMENT OF EDUCATION**

THE UNDER SECRETARY

> June 25, 2003

The Honorable Richard P. Mills

Commissioner of Education

New York State Education Department

111 Education Building

Albany, New York 12234

Dear Commissioner Mills:

I am writing to follow up on Secretary Paige's letter of January 8,
2003, in which he approved the basic elements of New York's state
accountability plan under Title I of the Elementary and Secondary
Education Act, as amended by the No Child Left Behind Act of 2001
(NCLB). I join Secretary Paige in congratulating you on New York's
initiative, innovation and commitment in submitting a plan that melds
the federal requirements with New York's existing strong accountability
system.

I appreciate New York's efforts to meet the Title I requirements and
your responsiveness to making changes as a result of the external peer
review of New York's accountability plan. The purpose of this letter is
to document the one aspect of New York's plan for which final action is
still needed. Specifically, New York's Board of Regents must amend its
regulations, as outlined in the attachment, to reflect how adequate
yearly progress (AYP) will be incorporated into New York's
accountability system. I understand that New York published these
regulations in May, that they are scheduled to be adopted on July 18,
that they would take effect on August 7, and that New York will use them
to make AYP determinations for the 2003-2004 school year.

When these regulations become final, please submit evidence of them to:

Ms. Darla Marburger

Deputy Assistant Secretary

Office of Elementary and Secondary Education

U.S. Department of Education

> 400 Maryland Avenue, S.W.

Washington, D.C. 20202

Additionally, this letter establishes an understanding of New York's
approach to certain elements of its plan, as listed below.

-   In response to Element 10.1 in its accountability workbook, New York
    will calculate a participation rate for high schools on the basis of
    students enrolled during their senior year of high school. Students
    who have not taken the statewide assessments must be considered
    non-participants. Please note that this calculation may not be
    limited to students who were enrolled in the school for a full
    academic year.

-   In response to Element 7.1 in its accountability workbook, New York
    will calculate a graduation rate that includes students who have
    graduated during the summer months following the end of a regular
    school year. Because it includes summer graduates in this
    calculation, New York will be using graduation rate information that
    is delayed by one year for its AYP calculations.

Providing the regulations and the elements noted above accurately
reflect the policies of New York's accountability plan, we will fully
approve that plan upon receipt of the evidence requested and a
confirmation that the elements noted above are an accurate reflection of
New York's plan.

With regard to two issues in New York's accountability plan, the
Secretary has exercised his authority to permit the orderly transition
from requirements under the Improving America's Schools Act (IASA) to
NCLB.

-   New York proposed to include students with the most significant
    cognitive disabilities in its accountability system based on their
    performance on an alternate assessment that would hold those
    students to different achievement standards from those all other
    students are expected to meet. All students with disabilities must
    be included in a State's accountability system. Moreover, §200.1 of
    the final Title I regulations requires that all students be held to
    the same grade level achievement standards. In addition,
    §200.6(a)(2)(ii) of those regulations states that "\[a\]lternate
    assessments must yield results for the grade in which the student is
    enrolled."

We have issued new proposed regulations that would permit a State to use
alternate achievement standards to measure the achievement of students
with the most significant cognitive disabilities (refer to the Federal
Register notice of March 20, 2003). For this transition year only, while
these proposed regulations are being finalized, New York may use
alternate achievement standards for students with the most significant
cognitive disabilities who take an alternate assessment to calculate AYP
for schools and districts. Those alternate achievement standards must be
aligned with New York's academic content standards and reflect
professional judgment of the highest learning standards possible for
those students. Moreover, the percentage of students held to alternate
achievement standards at district and State levels may not exceed 1.0
percent of all students in the grades assessed

> We note that this transition policy is not intended to preempt the
> rulemaking process or the standards and assessment peer review
> process, and that the final regulations may reflect a different policy
> and/or different percentage.

-   New York plans, consistent with §200.19 of the Title I regulations,
    to use a definition of graduation rate that follows a cohort of
    students from entry in ninth grade through graduation in four years.
    To do so, however, New York must have four years of data, which it
    will not have until school year 2006-2007. In the transition, New
    York may calculate graduation rate under its current system and as
    specified above.

New York's plan also contains a change to New York's standards and
assessments, which were approved by the Department under the IASA. To
include newly arrived limited English proficient students in its
accountability system, New York plans to use the New York State English
as a Second Language Achievement Test (NYSESLAT). This assessment would
not only measure these students' proficiency in English but also their
knowledge of reading/language arts aligned with New York's content and
achievement standards. Because the NYSESLAT was not part of the
assessment system originally approved by the Department under the IASA,
New York must submit evidence to the Department for peer review through
the standards and assessment process. That evidence must demonstrate
that the NYSESLAT is aligned with New York's content standards in
reading/language arts, that its achievement standards are comparable to
those against which all other students are measured, and that it is
valid and reliable. As a reminder, Title I requires that all students,
including LEP students, participate in the statewide assessment system
regardless of length of time in U.S. schools or level of English
language proficiency, and their results must be included in AYP
decisions if they have been within a school or district for a full
academic year.

As required by section 1111(b)(2) of Title I, New York must implement
its accountability plan to identify schools and school districts in need
of improvement and to implement section 1116 of Title I for the
2003-2004 school year, including arranging for public school choice and
supplemental educational services. If, over time, New York makes changes
to the accountability plan that you have presented for approval, you
must submit information about those changes to the Department for
approval, as required by section 1111(f)(2) of Title I.

Approval of New York's accountability plan is not also an approval of
New York's standards and assessment system. As New York makes changes in
its standards and assessments to meet NCLB requirements, New York must
submit information about those changes to the Department for peer review
through the standards and assessment process.

Please be aware that approval of New York's accountability plan for
Title I does not indicate that the system complies with Federal civil
rights requirements, including Title VI of the Civil Rights Act of 1964,
Title IX of the Education Amendments of 1972, Section 504 of the
Rehabilitation Act of 1973, Title II of the Americans with Disabilities
Act, and requirements under the Individuals with Disabilities Education
Act.

I am confident that New York will continue to advance its efforts to
hold schools and school districts accountable for the achievement of all
students. I wish you well in your efforts to leave no child behind.

Sincerely,

> /s/

Eugene Hickok

cc: Governor George Pataki

Enclosure

Enclosure

In its final accountability workbook, New York indicated that the
following policies needed to be implemented by the Board of Regents
through changes in current New York state regulations. Final approval of
New York's accountability plan is contingent upon these policies being
adopted as described in the plan.

-   Provide an AYP decision for all schools and districts using the same
    AYP definition (Elements 1.1 and 1.2)

-   Incorporate achievement levels into the AYP definition (Element 1.3)

-   Provide rewards and sanctions based on AYP for all schools and LEAs
    (Element 1.6)

-   Adopt definition of full academic year for high school students
    (Element 2.2)

-   Include the AYP definition in the NY State accountability system
    (Element 3.1)

-   Include the other indicator for elementary and middle schools in the
    AYP definition (Element 7.2)

Also, in assembling all the final documents of the New York plan,
several pieces of evidence have not been available from NY. These
include: Addendum to the Regents item on December 12 \[Attachment 1.1b\]
and 8 NYCRR §100.2(bb)(2) \[Attachment 1.5d\]. Please send these
materials along with evidence of your final regulations.