June 14, 2002

Dear Colleague:

As you know, on January 8, 2002, President Bush signed into law the            No Child Left Behind Act of 2001(NCLBA). I am excited about            this landmark legislation, as I believe it provides a critical road            map for bringing about real improvement in student achievement.

The NCLBA will substantially affect the 2002-2003 school year, and            given our short timeline for implementation, I wanted to provide you            with preliminary guidance on public school choice, supplemental education            services, and collective bargaining agreements--three key issues that            will affect your planning processes for this fall. This guidance is            not exhaustive and does not cover every possible nuance of the law.            Rather, it is intended to give initial direction to you as you proceed            this summer with implementing these programs for the start of the school            year, with the understanding that additional guidance and/or draft regulations            on these matters, as well as on other matters, will be provided in the            near future. Once again, because the law requires implementation of            these programs to begin this coming school year, I want to reiterate            that your planning processes for this should be underway.

The context for public school choice, supplemental education services,            and collective bargaining agreements is the accountability provisions            in the Title I program. Under the NCLBA, each state must establish a            definition of "adequate yearly progress" to use each year            to determine the achievement of each school district and school. School            districts must identify for improvement any Title I school that fails            to meet the state's definition of adequate yearly progress for two consecutive            years. Such schools, with technical assistance from their school districts,            must develop and implement improvement plans incorporating various strategies            to strengthen instruction in the core academic subjects in the school            and addressing the specific issues that caused the school to fail. As            discussed below, these schools must also provide public school choice            and supplemental education services.

I. Public School Choice

In General. In the case of any Title I elementary or secondary            school identified for school improvement, the school district is required            to provide all students enrolled in the school with the option to transfer            to another public school in the school district--which may include a            public charter school--that has not been identified for improvement.            This choice requirement applies unless state law specifically prohibits            choice.

I recognize that some states and school districts have already begun            planning for choice for the 2002-2003 school year. Indeed, the            new choice requirements must be implemented beginning this fall.            As you continue your planning, I strongly encourage you to provide several            choice options for parents. Parents should be provided a reasonable            amount of time to consider their options, be given concise but detailed information on the performance            and overall quality of the receiving schools, and be provided an opportunity            to visit potential schools of choice.

Schools Identified for Improvement Prior to Enactment. The NCLBA            includes specific transition provisions governing schools that were            identified for improvement under the prior law. With one exception stated            under the law, choice must be provided at the beginning of the 2002-2003            school year to all students in schools that have been identified for            improvement (based on adequate yearly progress under the pre-NCLBA)            as of January 7, 2002. The exception is if a school that is in school            improvement on January 7 makes its second year of adequate yearly progress            based on its 2002 assessment results, the district is not required to            provide choice to the students in that school. School districts            should begin planning now, if they have not begun already, to make choice            available for students in any school that was in school improvement            status as of January 7, 2002.

Capacity. A school district is obligated to provide choice to            all eligible students, subject to health and safety code requirements            (regarding facility capacity). Transferring students should be treated            as students who have moved into the receiving school's attendance zone            and allowed to enroll in class and other activities on the same basis            as other children in the school.

Priority for Low-Achieving Students in Low-Income Families.            Among students exercising choice, school districts must give priority            to the lowest-achieving students from low-income families. In other            words, these students have priority among school options offered under            the NCLBA and priority for transportation if funds for transportation            are inadequate for that purpose. However, it would be inappropriate            to remove students already accepted at a school to make room for those            students exercising choice.

Magnet and Special Focus Schools. School districts need not            disregard entrance requirements based on academic or other skills for            schools for the gifted and talented, math or science schools, or other            similar schools.

Transportation. If a student exercises the option to transfer            to another public school, the school district has certain obligations            to provide or pay for with federal funds the student's transportation            to the new school. The school district's obligation for choice-related            transportation and supplemental education services is equal to 20 percent            of its Title I, Part A allocation. Within the 20 percent, a district            must spend: (1) an amount equal to 5 percent for choice-related transportation;            (2) an amount equal to 5 percent for supplemental education services;            and (3) an amount equal to 10 percent for transportation or supplemental            education services, or both, as the district determines. This obligation            may be satisfied through use of regular Title I, Part A funds, school            improvement funds under Section 1003, or Title V, Part A funds. Additionally,            school districts may use funds transferred to Title I from other federal            education programs under Section 6123 to pay such costs. Programs eligible            for such transfers include Title II, Part A Improving Teacher Quality            State Grants; Title II, Part D Educational Technology State Grants;            Title IV, Part A Safe and Drug-Free Schools and Communities State Grants;            and Title V, Part A State Grants for Innovative Programs. Nothing in            the NCLBA prohibits a district from spending more for transportation.            Furthermore, a school district is not prohibited from spending state            or local funds, if it wishes, to assist in paying for transportation.

The school district's obligation to provide transportation for the            student ends at the end of the school year if the school from which            the student transferred is no longer identified by the school district            for school improvement, corrective action, or restructuring.

Desegregation. A school district that is subject to a desegregation            plan--whether voluntary, court ordered, or under an agreement with a            federal or state administrative agency--is not exempt from the public            school choice requirements. In determining how to provide students with            the option to transfer to another school, the school district may take            into account the requirements of the desegregation plan. If a desegregation            plan forbids the school district from offering any transfer option,            the school district should secure appropriate changes to the plan to            permit compliance with the public school choice requirements.

Cooperative Agreements with Other School Districts. There may            be very limited circumstances under which public school choice may not            be possible, particularly in some sparsely populated areas. For example,            school districts with only one school at a particular grade level, or            districts in which all schools at a grade level are identified for improvement,            will not be able to offer choice. In such cases, districts are encouraged            to establish cooperative agreements with other nearby school districts            to permit transfers. Furthermore, in the very limited circumstances            where choice is not possible and in accordance with the spirit of the            NCLBA, I strongly encourage school districts to consider offering supplemental            education services or other choices in curriculum or instruction such            as distance learning.

II. Supplemental Education Services

In General. In the case of a Title I school in the second year            of school improvement, the school district is required to arrange for            the provision of supplemental education services for eligible students            enrolled in the school. The provider of the services must have a demonstrated            record of effectiveness and be selected by parents from a list of providers            approved by the state. These supplemental services must be provided            beginning in the 2002-2003 school year. Supplemental education services            are extra academic assistance for low-income students who are attending            Title I schools that have failed to make adequate yearly progress for            three or more years. The purpose of these services is to ensure that            these students increase their academic achievement, particularly in            reading, language arts, and mathematics. These academic services may            include assistance such as tutoring, remediation, and academic intervention.            Instruction must take place outside the regular school day, such as            before or after school, on weekends, or during the summer. Supplemental            education services must be of high quality, research based, and specifically            designed to increase student academic achievement. Once again, I want            to reiterate that the law requires that these opportunities be afforded            to children beginning this fall.

Schools Identified for Improvement Prior to Enactment. Title            I schools that have been identified for school improvement for two or            more consecutive years as of January 7, 2002,must begin            offering supplemental education services at the beginning of the 2002-2003            school year. As noted above, however, if a school in improvement on            January 7 makes its second year of adequate yearly progress based on            its 2002 assessment results, the district is not required to provide            supplemental education services to eligible students in that school.

Parents. Parents choose the supplemental education services              provider for their children from among the providers approved by the              state for their school district. In general, the school district must              work to ensure parents have good, easy-to-understand information about              supplemental education services. School districts must provide parents              with information on the availability of supplemental education services,              the identity of approved service providers, and, at a minimum, a brief              description of the services, qualifications, and demonstrated effectiveness              of each provider. School districts may provide additional information,              as appropriate. Such communications with parents must occur at least              annually and must be in an understandable and uniform format. To the              extent possible, communications must also be in a language parents              can understand.

At the state level, parents should be consulted to promote participation              by a greater variety of providers and to develop criteria for identifying              high-quality providers. States, however, are ultimately responsible              for identifying eligible providers from among which parents may choose.

At the provider level, parents, the school district, and the provider              chosen by the parents must develop and identify specific academic              achievement goals for the student, measures of student progress, and              a timetable for improving achievement.

Eligible Children. Eligible children are those children from              low-income families attending Title I schools that have failed to              make adequate yearly progress for three consecutive years or more,              as described above. In circumstances where more students request services              than the school district can fund, the school district must place              a priority on serving those low-income students who are the lowest              achieving.

Per-Pupil Spending Limit. School districts are limited in              how much they can spend to provide services for each child. The limit              is what they receive in Title I funding per low-income child or the              cost of the services themselves. Specifically, school districts must              provide funding for supplemental education services for each participating              child in an amount which is the lesser of the following: (1) the school              district's Title I, Part A allocation, as determined by the state              education agency, divided by the number of children from families              below the poverty line (based on Census poverty data, not federal              school lunch data) in the school district; or (2) the actual costs              of the supplemental education services received by each child.

Identification by States of Supplemental Education Service Providers.State education agencies must develop and apply objective criteria              for identifying supplemental education service providers. The state              education agency must also consult with parents, teachers, school              districts, and interested members of the public to identify a wide              array of supplemental education service providers so that parents              can have a wide variety of choices. The state education agency must              update this state-level list of approved providers on at least an              annual basis and must provide a list for school districts of those              providers available in their geographic locations.

Criteria developed by the state education agency for identification              of providers must include: (1) a demonstrated record of effectiveness              in improving student academic achievement; (2) documentation that              the instructional strategies used by the provider are high quality,              based upon research, and designed to increase student academic achievement;              (3) evidence that services are consistent with the instructional program of the school                district and with state academic content standards; and (4) evidence                that the provider is financially sound.

With respect to the first criterion, each state education agency                is responsible for defining what would be acceptable evidence of                effectiveness. Acceptable evidence may include significant improvement                in student academic achievement, successful use of instructional                practices based on sound research or of documented success by other                providers, successful and sustained remediation of reading or math                difficulties, or use of a program that others have successfully                used to improve student academic achievement.

State education agencies may not require supplemental education                service providers to hire only certified teachers in order to be                eligible providers.

Providers shall not be disqualified on the grounds that their documentation                of instructional strategies does not include "scientifically                based research" (as such term is defined in the NCLBA).Supplemental Education Service Providers. A school entity                (public or private), an institution of higher education (public                or private), or a nonprofit or for-profit organization can all be                considered for inclusion on the state-approved list of supplemental                education service providers. Faith-based organizations can also                be considered for inclusion as state-approved providers. The state                must apply all criteria consistently when selecting approved providers.

Distance-Learning Technology. Providers that utilize distance-learning                technology do not have to meet different criteria; they are eligible                if they meet the criteria established by the state education agency                for all providers. The law states that providers must be within                the school district or the providers' services must be reasonably                available in neighboring education agencies. The provider of distance-learning                supplemental education services does not have to be located in the                school district to meet this requirement; only the services need                to be available. We would encourage the use of distance learning                in rural areas and other areas where parents have a limited number                of providers available in their district.

Charter Schools. If a charter school, as a part of a school                district, receives Title I, Part A funds and meets the eligibility                criterion of being identified as a school that fails to make adequate                yearly progress for three or more years, the school district must                offer supplemental education services, and the school district is                responsible for funding such services, just as for the other public                schools in the school district.

If the charter school is itself considered a school district under                state law and receives Title I, Part A funds, it is responsible                for ensuring that eligible students receive supplemental education                services from approved providers and must fund such services.

Transportation. School districts may, at their discretion,                use funds reserved for supplemental education services to transport                students to and from approved providers.

III. Collective Bargaining Agreements

The Department has received many inquiries regarding the impact of            the new law on existing collective bargaining unit agreements. The NCLBA            provides that nothing in Section 1116 (academic assessment and local            education agency and school improvement) shall be construed to alter            or otherwise affect the rights, remedies, and procedures afforded school            and school district employees under federal, state, or local laws or            under the terms of collective bargaining agreements, memoranda of understanding,            or other agreements between such employees and their employers. Section            1116 does not operate to invalidate employee protections that exist            under current law and collective bargaining and similar labor agreements.            However, it does not exempt state education agencies, local education            agencies, and schools from compliance with Title I based on prospective            collective bargaining or similar agreements or changes in state or local            law. State and local education authorities, as well as state legislatures            and local governing boards, need to ensure that changes in state and            local laws are consistent with Title I requirements and that any changes            to collective bargaining agreements or new agreements are also consistent            with Title I.

With respect to the selection of supplemental education service providers,            there is no requirement in the NCLBA that parents give preference to            parties to the collective bargaining agreements. As you know, parents            select the supplemental service provider, and parents are not parties            to collective bargaining agreements.

Thank you again for your kind attention to these matters. Please let            me reiterate that this letter is intended to provide preliminary guidance            on public school choice, supplemental education services, and collective            bargaining agreements. The Department will provide additional guidance            and/or draft regulations on these matters, as well as other matters,            in the near future. Please do not delay the planning process. I am hopeful            that the new statute, together with this initial guidance, will enable            you to promptly move ahead in preparation for the 2002-2003 school year.

Sincerely,

/s/

Rod Paige

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