April 27, 2004

Honorable Edward M. Kennedy
  United States Senate
  Washington, DC 20510

Dear Senator Kennedy:

I am writing in response to your letter dated March 24, 2004, requesting that 
  States be allowed to recalculate adequate yearly progress (AYP) decisions based 
  on data from the 2002-2003 school year using the new flexibility offered by 
  the Department of Education (Department) for students with significant cognitive 
  disabilities and limited English proficient (LEP) students. Your request rests 
  on an unfounded claim that the Department did not issue regulations in a "timely 
  manner." Indeed, as I will detail later, the Department was quite diligent 
  in its efforts to develop regulations that are in the best interests of students 
  yet fair to schools and districts.

NCLB Implementation Timeline

The Department issued Title I regulations promptly after addressing the concerns 
  of Congress and ensuring that the public had ample opportunity to provide input, 
  as required by the law. In fact, the Department successfully negotiated regulations 
  for standards and assessments only six months following the passage of No 
  Child Left Behind (NCLB). The Department also finalized regulations addressing 
  accountability and school improvement identifications five months later. In 
  summary, the two most overarching regulations that govern the assessment and 
  accountability provisions were finalized within a year of NCLB's being signed 
  into law.

Under my watch, the Department has undertaken aggressive efforts to provide 
  comprehensive regulatory and technical guidance on most of the complex issues 
  in the law. That takes thoughtful deliberation and careful promulgation of regulations 
  and guidance. The opposite tack - to promulgate rules and regulations without 
  input from practitioners and key policymakers - was not an acceptable option 
  to me.

Let me briefly outline the implementation timeline: on June 10, 2003 - 18 months 
  after the law was enacted - all 50 states, the District of Columbia and Puerto 
  Rico, had approved accountability plans in place. Then, early in the 2003-04 
  school year, the first full year the accountability plans were being implemented, 
  I directed the Department to examine those areas of the law's implementation 
  that might need to be reexamined from a practical, in-the-field perspective. 
  In December 2003, I announced the final regulation on the assessment of, and 
  accountability for, students with the most significant cognitive disabilities, 
  which was the culmination of a process that had begun in the 2002-03 school 
  year. Then, in February 2004, I announced the new flexibility for the assessment 
  of, and accountability for, LEP students. To act without firsthand knowledge 
  of how the law was being implemented would have resulted in circumstances that 
  may have been detrimental to children's educational opportunities.

Students with Significant Cognitive Disabilities

In order to provide as much flexibility to States as soon as possible, I exercised 
  my transition authority to provide flexibility well in advance of finalizing 
  the regulations. As you know, the flexibility to include students' scores based 
  on alternate achievement standards was proposed in August 2002 as part of the 
  Title I notice of proposed rulemaking (NPRM) on accountability and school improvement. 
  Based on the numerous comments we received on the issue and your own questions, 
  we issued a separate NPRM to address this important issue and ensure that comments 
  were based on a full understanding of the intent and impact of the proposal.

Even though this proposal was not finalized in December 2002 with the rest 
  of the Title I regulations, I gave States the flexibility to include (in AYP 
  decisions) the proficient results of alternate assessments for students with 
  disabilities based on alternate achievement standards. Specifically, information 
  about the use of alternate achievement standards was included in every State 
  decision letter and/or accountability plan, including those for Massachusetts 
  and California. I have included part of the text:

| | While this [special education] regulation is being finalized 
      and for this transition year [2002-03] only, [your State] may use alternate 
      achievement standards for students with the most significant cognitive disabilities 
      who take an alternate assessment to calculate AYP for schools Moreover, 
      the percentage of students held to alternate achievement standards at the 
      school district and the State levels may not exceed 1.0 percent of all students 
      in the grades assessed. 
      (www.ed.gov/policy/elsec/guid/stateletters/index.html) | 
| | ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | 

As you can see, all States had access to the flexibility the Department was 
  contemplating while finalizing the regulation on this issue. Further, during 
  the summer of 2003, I released additional transitional flexibility that provided 
  guidance on the use of instructional-level assessments, which only applied to 
  assessments administered during the 2002-03 school year (www.ed.gov/policy/speced/guid/secletter/030627.html). 
  The bottom line is that States have had access to significant flexibility related 
  to students with significant cognitive disabilities since the beginning of the 
  implementation of their accountability plans. Consequently, it is neither necessary 
  nor beneficial to apply retroactively this policy to the 2002-2003 school year.

Limited English Proficient Students

With regard to the timing of flexibility provided for LEP students, I believe 
  it is important to note that prior to finalizing the Title I regulations in 
  December 2002, we discussed this issue with your staff, who strongly communicated 
  that they did not concur with the policy of permitting formerly LEP students 
  to be counted in the LEP subgroup. However, my staff continued to examine the 
  issue and talk to States and school districts and determined that the assessment 
  of, and accountability for, LEP students remained a significant issue that needed 
  to be addressed. I am glad that you now agree that States need some flexibility 
  in how they include limited English proficient students in State assessment 
  and accountability systems.

In a February 2004 letter addressing assessment and accountability provisions 
  as they apply to LEP students, I provided flexibility to all States for assessments 
  given this school year and for the AYP determinations based on those assessments. 
  As was true with flexibility provided for children with disabilities, States 
  now have access to flexibility prior to the Department's issuing final regulations 
  (www.ed.gov/policy/gen/guid/secletter/040220.html).

We have spoken with a number of States about the LEP flexibility, in particular 
  about the data management and infrastructure requirements to implement the flexibility. 
  Most States are in the process of improving their data management systems and 
  at this time many states may find it difficult to implement this flexibility 
  for the current year, much less for previous years.

Retroactivity

There are a number of other substantial legal and policy reasons not to apply 
  the new policies related to students with the most significant cognitive disabilities 
  and LEP students in a retroactive fashion. According to the Department's Office 
  of General Counsel, it is very rare to apply federal policies retroactively, 
  as you have requested. The Supreme Court ruled in Bowen v. Georgetown University 
  Hospital (1988) that a retroactive regulation was invalid because there 
  was an absence of statutory authority or legislative intent to make it retroactive. 
  In announcing its decision, the Court noted, "Retroactivity is not favored 
  in the law. Thus, congressional enactments and administrative rules will not 
  be construed to have retroactive effect unless their language requires this 
  result." Federal statutes and regulations are only applied prospectively 
  unless there is clear Congressional intent and language to apply such policies 
  retroactively.

As you know, the NCLB statute and accompanying conference report contain no 
  such intent or language. They are silent on this point. For example, Section 
  1901 says, "The Secretary may issue such regulations as are necessary to 
  reasonably ensure that there is compliance with this title [Title I]." 
  Thus Congress gave no indication to the Department that its intention was to 
  make the regulations retroactive.

Finally, it is important to note, the first time schools were required to make 
  AYP under the new NCLB definition was the 2002-2003 school year (based on assessments 
  given that year). Therefore, because it takes two consecutive years of not 
  making AYP to be identified for improvement there is not a single school in 
  the country identified for improvement solely on the basis of a single 
  subgroup's not making AYP, including students with disabilities or LEP students. 
  Schools have already been able to apply flexibility granted for disabled students 
  both last school year and this school year. The LEP flexibility will be in effect 
  for the current school year. Therefore, schools that did not meet AYP last year 
  because of how limited English proficient students were tested or included in 
  the AYP system, and then make AYP this year under the new rules, will not be 
  identified for improvement. Thus, allowing for the retroactive application of 
  the policies related to the assessment of, and accountability for, students 
  with the most significant cognitive disabilities and LEP students would result 
  in no practical difference than by not allowing it, but would result in great 
  confusion in the field about what rules applied when and how.

The introduction of Departmental flexibility based upon my authority as Secretary 
  has to be made thoughtfully and carefully. In summary I believe it is unnecessary 
  to make the flexibility retroactive and would be inconsistent with the facts 
  of implementation, practical reality on the ground, Congressional intent, legal 
  precedent and good policy.

I appreciate your efforts to ensure that State accountability systems produce 
  decisions that are fair, valid, and reliable. I look forward to continuing to 
  work with you on this historic educational reform.

Sincerely,

/s/

Rod Paige

cc: Cosigners of March 24, 2004 letter

|Last Modified: 05/03/2004
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