August 28, 2003

Dear Chief State School Officers:

I have greatly appreciated your cooperation in implementing the No Child Left Behind Act since President Bush signed into law that historic legislation in January of last year. The submission and approval of accountability plans for all 50 States, the District of Columbia, and Puerto Rico was, in particular, a very notable event and reflective of the spirit of cooperation we have achieved in the implementation of the Act.

During the school year now beginning, I will be sending a series of letters informing you of new developments in the implementation of the law and reminding you of various statutory deadlines and other requirements. The purpose of this particular letter is to discuss the educational choice and supplemental educational services provisions under Title I.

As you know, the law requires local educational agencies (LEAs) to provide all students attending schools identified for school improvement, corrective action, or restructuring under Title I with the opportunity to transfer to another school that has not been so identified. LEAs must also provide students who decide to transfer with transportation to their new schools, subject to the spending requirement discussed below.

The law also requires LEAs to make available to students from low-income families attending schools in their second year of improvement, or undergoing corrective action or restructuring, the opportunity to receive "supplemental educational services"; that is, tutoring or other academic enrichment services provided outside the regular program that are designed to enable those students to reach high academic standards. The law requires affected LEAs to use an amount equal to 20 percent of their Title I allocations to pay for choice-related transportation and supplemental educational services; more detailed information on this funding requirement is included in the Department's regulations and non-regulatory guidance.

State educational agencies have a number of responsibilities related to educational choice and supplemental educational services. They must monitor LEAs to ensure that implementation is occurring at the local level. They must ensure that schools in the State are identified as in need of improvement on a timely basis, so that families can exercise choice or select a supplemental educational services provider before the school year begins. They must conduct an annual process to approve supplemental educational service providers within the State, making an effort to attract as wide a variety of providers as possible. And they must monitor the quality and effectiveness of approved providers, and withdraw approval of any providers that fail, after two years, to contribute to improvement of students' academic proficiency.

Although educational choice and supplemental services were supposed to be fully implemented at the beginning of school year 2002-2003, our review of implementation over the last year indicated that compliance was uneven. Some LEAs did not offer choice or supplemental services to all students who were eligible. Some did not offer sufficient choices to eligible students. Others did not fund choice-related transportation and supplemental educational services at the level required under the Act.

To some extent, this inconsistent implementation was understandable. I realize that these requirements were new, and that States and LEAs did not have much time to prepare for them. However, this situation must not continue in school year 2003-2004. We have all had enough time to digest these requirements and implement them. The Department has issued guidance on both educational choice and supplemental educational services and is prepared to work with you on any remaining issues, should there be any. We will devote attention, through our monitoring efforts, to determining if full implementation is occurring. We will be quick to draw to your attention any instances of noncompliance, and we will expect you to take immediate action to correct any problems.

We would also like to work with you, and with your LEAs, on ensuring that implementation of Title I choice and supplemental educational services is consistent not only with the letter, but also with the spirit, of No Child Left Behind. Implementation will not really be successful unless LEAs energetically inform parents about the existence of these two options, and do so in a timely and "customer-friendly" manner. It will not be successful unless LEAs give parents sufficient time to exercise these options. And it will require LEAs to establish contractual arrangements with supplemental educational service providers that allow services to flourish. For example, LEAs should ensure that providers have ample time to provide parents information on their services, so that parents are able to make informed and timely decisions on which services would best meet the needs of their child.

The Department recently issued our latest version of the non-regulatory guidance on supplemental educational services, and will update our guidance on educational choice as needed. We probably cannot anticipate or address every issue in the formal guidance, but would like to provide technical assistance and to cooperate with you on developing creative and effective mechanisms for implementing these important provisions of the Act.

One issue that has recently arisen, regarding implementation of these elements of the law, is the situation now facing some LEAs that elected to use Title I funds to meet the choice-related transportation and supplemental services provisions and properly reserved Title I funds for that purpose but, as the current fiscal year nears an end, have not yet expended the full amount required for those activities. The Title I statute allows LEAs to "carry over" up to 15 percent of their Title I allocations from the first year of availability to the second. Some LEAs may be finding it difficult, however, to reserve the required level of funding and still abide by the 15 percent cap on carry-over. In reviewing this issue, the Department has decided to use the transition authority in the statute to give LEAs, for this year only, the authority to exceed the 15 percent carry-over limitation if (and only if) they need to do so in order to spend the equivalent of 20 percent of their fiscal year 2002 allocations on choice-related transportation and supplemental educational services. Starting with fiscal year 2003 allocations, all school districts must comply with the statutory 15 percent carry-over limit for Title  I funds, as described in question K-20 of the guidance. Please make this policy known to the LEAs in your State.

I hope that I have your full support on implementation of the critical  choice and supplemental educational services requirements of No Child Left Behind as we go forward this year. Choice and supplemental educational services are not the only major elements of the statute,  but they are certainly very important ones. If you have any questions about these policies, please get in touch with me. I wish you all the best for the start of the new school year.

Sincerely,

/s/

Rod Paige

|Last Modified: 09/15/2004
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