II 

112TH CONGRESS 

1ST SESSION S. 1725 

To amend the Elementary and Secondary Education Act of 1965 regarding 

the accountability system for elementary and secondary schools, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 17, 2011 

Ms. MURKOWSKI introduced the following bill; which was read twice and 

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Elementary and Secondary Education Act 

of 1965 regarding the accountability system for elementary and secondary schools, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Educational Account5 ability and State Flexibility Act’’. 


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1 SEC. 2. EDUCATIONAL ACCOUNTABILITY AND STATE FLEXI2 BILITY. 

3 Part A of title I of the Elementary and Secondary 

4 Education Act of 1965 (20 U.S.C. 6311 et seq.) is amend5 ed by inserting after section 1116 the following: 

6 ‘‘SEC. 1116A. EDUCATIONAL ACCOUNTABILITY AND STATE 

7 FLEXIBILITY. 

8 ‘‘(a) ESTABLISHMENT OF NEW STATE FLEXIBILITY

9 IN ACCOUNTABILITY REQUIREMENTS.—Beginning one 

10 year after the date of enactment of the Educational Ac11 countability and State Flexibility Act, each State edu12 cational agency and local educational agency shall deter13 mine the performance of, and consequences for, the public 

14 schools served under this part based on this section in15 stead of identification under paragraphs (1), (7), and (8) 

16 of section 1116(b). 

17 ‘‘(b) EVALUATION.— 

18 ‘‘(1) IN GENERAL.—Each State educational 

19 agency shall, for each year, conduct an audit and 

20 evaluate a school’s performance for a school year to 

21 determine the degree of need for improvement and 

22 assign each school to a tier described in subsection 

23 (c). 

24 ‘‘(2) CONSIDERATIONS.—In determining the 

25 proper tier for a school, the State educational agen26 cy shall consider, at a minimum— 


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1 ‘‘(A) each school’s performance and 

2 progress toward making adequate yearly 

3 progress; 

4 ‘‘(B) student academic performance, as 

5 measured by the State academic assessment 

6 and other indicators described in the State and 

7 local plan; and 

8 ‘‘(C) student growth. 

9 ‘‘(c) ACCOUNTABILITY TIERS.—Each State shall de10 velop an accountability system to evaluate schools that 

11 consists of a series of tiers, each of which may be described 

12 by a letter grade, and shall assign rational and appro13 priate consequences to each tier. The system shall include, 

14 at a minimum, the following tiers and consequences for 

15 each tier: 

16 ‘‘(1) MAKING ADEQUATE YEARLY PROGRESS.— 

17 ‘‘(A) DESCRIPTION.—This tier shall in18 clude each school in the State that is making 

19 adequate yearly progress for all categories de20 scribed in section 1111(b)(2)(C)(v). 

21 ‘‘(B) CONSEQUENCE.—The State edu22 cational agency shall provide a school in this 

23 tier with recognition and shall ensure that the 

24 school shares the school’s best practices with 

25 other schools. 


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1 ‘‘(2) NEARLY MAKING ADEQUATE YEARLY

2 PROGRESS AND MAKING GROWTH.— 

3 ‘‘(A) DESCRIPTION.—This tier shall in4 clude each school in the State that— 

5 ‘‘(i) has not made adequate yearly 

6 progress, due to not more than 2 of the 

7 categories of students described in section 

8 1111(b)(2)(C)(v)(II) or due to not achiev9 ing the required graduation rate by a small 

10 margin; and 

11 ‘‘(ii) demonstrates that the school is 

12 making growth with respect to such cat13 egories or graduation rate, as applicable, 

14 such as by satisfying or substantially satis15 fying the safe harbor provisions of section 

16 1111(b)(2)(I). 

17 ‘‘(B) CONSEQUENCES.—The State edu18 cational agency shall— 

19 ‘‘(i) provide each school in this tier 

20 with recognition for the school’s successes 

21 and growth; 

22 ‘‘(ii) require that, by not later than 

23 the first day of the school year following 

24 such identification, the local educational 

25 agency shall provide supplemental eduVerDate Mar 15 2010 03:08 Oct 18, 2011 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1725.IS S1725

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1 cational services to students in such cat2 egories attending the school who are in any 

3 of grades 3 through 12 and who did not 

4 meet or exceed the proficient level on the 

5 most recent State assessment in mathe6 matics or in reading or language arts, in 

7 accordance with section 1116(e); and 

8 ‘‘(iii) ensure that each school creates, 

9 and submits for approval by the State edu10 cational agency, a research-based improve11 ment plan for the students in such cat12 egories attending the school who are in any 

13 of grades 3 through 12 and who did not 

14 meet or exceed the proficient level on the 

15 most recent State assessment in mathe16 matics or in reading or language arts, or 

17 for improving the graduation rate, as ap18 plicable, and implements the approved 

19 plan. 

20 ‘‘(3) NOT MAKING ADEQUATE YEARLY

21 PROGRESS FOR A SIGNIFICANT NUMBER OF CAT22 EGORIES.— 

23 ‘‘(A) DESCRIPTION.—This tier shall in24 clude each school in the State that— 


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1 ‘‘(i) has not made adequate yearly 

2 progress for a significant number of cat3 egories or has not achieved the required 

4 graduation rate; and 

5 ‘‘(ii) is not showing enough growth in 

6 the academic indicators to provide reason7 able confidence that the students are on 

8 track to be proficient by the time the stu9 dents graduate secondary school or that 

10 the graduation rate will improve within a 

11 reasonable number of years to the required 

12 level. 

13 ‘‘(B) CONSEQUENCES.— 

14 ‘‘(i) RECOGNITION.—The State edu15 cational agency shall ensure that each 

16 school in this tier receives recognition for 

17 what the school is doing well. 

18 ‘‘(ii) IMPROVEMENT PLAN.—The local 

19 educational agency serving each school in 

20 this tier shall audit the policies and prac21 tices of the school, as described in sub22 section (d), and, based on the results, shall 

23 create, and submit to the State educational 

24 agency for approval, a research-based im25 provement plan for the students in such 


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1 categories attending the school who are in 

2 any of grades 3 through 12 and who did 

3 not meet or exceed the proficient level on 

4 the most recent State assessment in math5 ematics or in reading or language arts, for 

6 improving the graduation rate in the 

7 school, or for the school as a whole, as ap8 propriate, and implement the approved 

9 plan. A plan described in this clause shall 

10 include valid, reliable, evidence-based inter11 ventions and may be developed with the as12 sistance of a nonprofit organization with 

13 demonstrated effectiveness in school im14 provement research or implementation. 

15 ‘‘(iii) SUPPLEMENTAL EDUCATIONAL

16 SERVICES.—The State educational agency 

17 shall require that the local educational 

18 agency provide supplemental educational 

19 services to students in such categories at20 tending the school who are in any of 

21 grades 3 through 12 and who did not meet 

22 or exceed the proficient level on the most 

23 recent State assessment in mathematics or 

24 in reading or language arts, in accordance 

25 with section 1116(e). 


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1 ‘‘(iv) TECHNICAL ASSISTANCE.—The 

2 State educational agency shall provide 

3 technical assistance, to the degree nec4 essary as indicated by audit results under 

5 subsection (b), and may require the local 

6 educational agency to implement in the 

7 school specific and appropriate require8 ments, in accordance with subsection (d). 

9 ‘‘(4) NOT MAKING ADEQUATE YEARLY

10 PROGRESS FOR MULTIPLE YEARS.— 

11 ‘‘(A) DESCRIPTION.—This tier shall in12 clude each school in the State that— 

13 ‘‘(i) has not made adequate yearly 

14 progress for a number of years due to— 

15 ‘‘(I) not meeting the adequate 

16 yearly progress targets for a number 

17 of categories described in section 

18 1111(b)(2)(C)(v)(II); or 

19 ‘‘(II) having a very low gradua20 tion rate for a number of years; and 

21 ‘‘(ii) is not showing improvement. 

22 ‘‘(B) CONSEQUENCES.— 

23 ‘‘(i) AUDIT AND IMPLEMENTATION OF

24 TURNAROUND MODEL OR SCHOOL IM25 PROVEMENT STRATEGIES.—The State 


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1 shall conduct an in-depth audit of the 

2 school and shall require the local edu3 cational agency to implement— 

4 ‘‘(I) an alternative model of gov5 ernance under section 1116(b)(8)(B); 

6 or 

7 ‘‘(II) school improvement strate8 gies based on a system of support 

9 model described in subsection (d). 

10 ‘‘(ii) CONSULTATION.—A State edu11 cational agency shall make the decision re12 garding the appropriate models or strate13 gies to be used in accordance with clause 

14 (i), but shall first consult with the local 

15 educational agency serving such school, 

16 educators, Indian tribes or tribal organiza17 tions, and community members before 

18 making a final determination. 

19 ‘‘(iii) NO FEDERAL INFLUENCE.—The 

20 Secretary shall not prioritize, incentivize, 

21 or require the use of, any particular meth22 od of school turnaround or school improve23 ment strategy. 

24 ‘‘(iv) SUPPLEMENTAL EDUCATIONAL

25 SERVICES.—The State educational agency 


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1 shall require that the local educational 

2 agency provide supplemental educational 

3 services to students attending the school 

4 who are enrolled in any of grades 3 

5 through 12 and who did not meet or ex6 ceed the proficient level on the most recent 

7 State assessment in mathematics or in 

8 reading or language arts, in accordance 

9 with section 1116(e). 

10 ‘‘(v) PUBLIC SCHOOL CHOICE.— 

11 ‘‘(I) IN GENERAL.—Not later 

12 than the first day of the school year 

13 following a school’s classification in 

14 this tier, the local educational agency 

15 serving the school shall provide stu16 dents in grades 3 through 12 who are 

17 enrolled in the school and who did not 

18 meet or exceed the proficient level on 

19 the most recent State assessment in 

20 mathematics or in reading or lan21 guage arts with the option to transfer 

22 to another public school served by the 

23 local educational agency in accordance 

24 with subclause (II), which may in25 clude a public charter school, that has 


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1 not been identified for school improve2 ment under this paragraph, unless 

3 such an option is prohibited by State 

4 law. The local educational agency 

5 shall provide, or shall pay for the pro6 vision of, transportation for the stu7 dent to the public school the student 

8 attends. 

9 ‘‘(II) TRANSFER.—Students who 

10 use the option to transfer under this 

11 clause shall be enrolled in classes and 

12 other activities in the public school to 

13 which the students transfer in the 

14 same manner as all other children at 

15 the public school. 

16 ‘‘(III) SPECIAL RULES.—Not17 withstanding the requirements of this 

18 clause, a local educational agency 

19 shall not be required to provide stu20 dents with the option to transfer to a 

21 school under this subparagraph if 

22 doing so would expose students to un23 safe or unreasonable transportation 

24 routes or means or if there is no high25 er-performing school within the school 


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1 district that has the space or capacity 

2 to serve them. 

3 ‘‘(vi) WITHHOLDING OF STATE OR

4 FEDERAL FUNDS.—A State shall have full 

5 authority to mandate any necessary 

6 changes to a school in order to improve 

7 and to withhold Federal or State funding. 

8 ‘‘(5) STATE DETERMINATIONS.—Any decisions 

9 about the number of categories of students or the 

10 number of years that are required for a particular 

11 tier shall be made by the State educational agency 

12 and not by the Secretary. 

13 ‘‘(d) SYSTEM OF SUPPORT MODEL.—A system of 

14 support model described in this subsection provides 

15 aligned resources, information, tools, professional develop16 ment, and technical assistance to assist local educational 

17 agencies and schools to improve within the following do18 mains: 

19 ‘‘(1) Curriculum (review and development, 

20 alignment with performance standards, and imple21 mentation in classrooms). 

22 ‘‘(2) Assessment (formative and summative 

23 data collection and review, alignment with cur24 riculum and performance standards, use of data to 

25 guide instruction). 


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1 ‘‘(3) Instruction (applying multiple effective 

2 strategies, targeted additional services, alignment 

3 with performance standards). 

4 ‘‘(4) Supportive learning environment (effective 

5 classroom management, maximizing instructional 

6 time, discipline or behavior plans, attendance, parent 

7 and community involvement, extended learning). 

8 ‘‘(5) Professional development (job-embedded, 

9 results-oriented, data-driven mentoring). 

10 ‘‘(6) Leadership, including— 

11 ‘‘(A) developing and implementing effective 

12 improvement strategies; 

13 ‘‘(B) curriculum aligned to performance 

14 standards; 

15 ‘‘(C) parental and community engagement; 

16 ‘‘(D) using data to oversee student 

17 progress; 

18 ‘‘(E) teacher supervision, support, and 

19 evaluation, and collaboration; and 

20 ‘‘(F) the school’s mission, vision, and 

21 goals. 

22 ‘‘(e) STATE PLAN.—A State shall include a descrip23 tion of the State’s multi-tiered system in the State plan 

24 under section 1111(a), and shall provide to the Secretary 

25 such information as the Secretary may reasonably require 


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1 relating to the system and the performance of the State’s 

2 schools in the system in the State’s report under section 

3 1111(h)(2). The Secretary shall have no authority to ap4 prove or disapprove the system under such plan. 

5 ‘‘(f) FUNDS FOR TRANSPORTATION AND SUPPLE6 MENTAL EDUCATIONAL SERVICES.— 

7 ‘‘(1) IN GENERAL.—A local educational agency 

8 shall reserve from its allocation under subpart 2 to 

9 provide transportation as required under subsection 

10 (c)(4)(E) and to satisfy all requests for supple11 mental educational services under section 1116(e), 

12 subject to paragraph (2). 

13 ‘‘(2) UNUSED FUNDS.—Beginning 30 days 

14 after the first day of a school year, a local edu15 cational agency may spend the amount reserved 

16 under paragraph (1) for other purposes, if the local 

17 educational agency certifies to the State educational 

18 agency that all families of students eligible for trans19 portation under subsection (c)(4)(E), or supple20 mental educational services under section 1116(e), 

21 have been notified of the opportunity and have been 

22 provided with a reasonable period of time to change 

23 schools or enroll in supplemental educational serv24 ices, as appropriate. 

25 ‘‘(g) TRANSITION PROVISIONS.— 


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1 ‘‘(1) INAPPLICABILITY OF CERTAIN PROVISIONS

2 OF SECTION 1116(b).—Beginning on and after the 

3 date of enactment of the Educational Accountability 

4 and State Flexibility Act, a State or local edu5 cational agency shall not be required to identify a 

6 school under paragraph (1), (7), or (8) of section 

7 1116(b). Any reference in any other section of this 

8 Act to an identification under any such paragraph 

9 shall be deemed to refer to the appropriate tier of 

10 the State’s multi-tiered system described in sub11 section (c). 

12 ‘‘(2) REGULATIONS.—The Secretary shall issue 

13 regulations to provide for the orderly transition from 

14 the relevant provisions of section 1116 to the re15 quirements of this section.’’. 

16 SEC. 3. SUPPLEMENTAL EDUCATIONAL SERVICES. 

17 Section 1116(e) of the Elementary and Secondary 

18 Education Act of 1965 (20 U.S.C. 6316(e)) is amended— 

19 (1) by redesignating paragraph (12) as para20 graph (13); 

21 (2) by inserting after paragraph (11) the fol22 lowing: 

23 ‘‘(12) ADDITIONAL RULES.—In addition to the 

24 other requirements of this paragraph— 


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1 ‘‘(A) in order to provide services under this 

2 subsection to students in a school, a provider on 

3 the list of approved providers across the State 

4 must also have provided the State with evidence 

5 that the provider is successful at serving any 

6 category of students at the school that did not 

7 make adequate yearly progress for the pre8 ceding year; 

9 ‘‘(B) local educational agencies may nego10 tiate performance-based contracts with pro11 viders that facilitate greater control for the 

12 local educational agency regarding— 

13 ‘‘(i) the hourly rates for the supple14 mental educational services and the min15 imum supplemental educational services 

16 hours provided; 

17 ‘‘(ii) tutor qualifications and the cur18 riculum to be provided, particularly for 

19 serving students who are limited English 

20 proficient and children with disabilities; 

21 and 

22 ‘‘(iii) other programmatic and finan23 cial management factors; and 

24 ‘‘(C) State educational agencies shall en25 courage local educational agencies to negotiate 


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1 contracts regarding the factors described in 

2 subparagraph (B).’’; and 

3 (3) in paragraph (13)(A) (as redesignated by 

4 paragraph (1)), by inserting ‘‘, who is in any of 

5 grades 3 through 12 and who did not meet or exceed 

6 the proficient level on the most recent State assess7 ment in mathematics or in reading or language 

8 arts’’ before the semicolon. 

Æ 


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