II 

108TH CONGRESS 

2D SESSION S. 2542 

To provide for review of determinations on whether schools and local educational agencies made adequate yearly progress for the 2002–2003 

school year taking into consideration subsequent regulations and guidance 

applicable to those determinations, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 17, 2004 

Mr. KENNEDY (for himself and Mr. EDWARDS) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To provide for review of determinations on whether schools 

and local educational agencies made adequate yearly 

progress for the 2002–2003 school year taking into consideration subsequent regulations and guidance applicable to those determinations, 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 ‘‘No Child Left Behind 

5 Fairness Act of 2004’’. 
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•S 2542 IS 

1 SEC. 2. REVIEW OF ADEQUATE YEARLY PROGRESS DETER2 MINATIONS FOR SCHOOLS FOR THE 2002–2003 

3 SCHOOL YEAR. 

4 (a) IN GENERAL.—The Secretary shall require each 

5 local educational agency to provide each school served by 

6 the agency with an opportunity to request a review of a 

7 determination by the agency that the school did not make 

8 adequate yearly progress for the 2002–2003 school year. 

9 (b) FINAL DETERMINATION.—Not later than 30 days 

10 after receipt of a request by a school for a review under 

11 this section, a local educational agency shall issue and 

12 make publicly available a final determination on whether 

13 the school made adequate yearly progress for the 2002– 

14 2003 school year. 

15 (c) EVIDENCE.—In conducting a review under this 

16 section, a local educational agency shall— 

17 (1) allow the principal of the school involved to 

18 submit evidence on whether the school made ade19 quate yearly progress for the 2002–2003 school 

20 year; and 

21 (2) consider that evidence before making a final 

22 determination under subsection (b). 

23 (d) STANDARD OF REVIEW.—In conducting a review 

24 under this section, a local educational agency shall revise, 

25 consistent with the applicable State plan under section 

26 1111 of the Elementary and Secondary Education Act of 
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1 1965 (20 U.S.C. 6311), the local educational agency’s 

2 original determination that a school did not make ade3 quate yearly progress for the 2002–2003 school year if 

4 the agency finds that the school made such progress tak5 ing into consideration— 

6 (1) the amendments made to part 200 of title 

7 34 of the Code of Federal Regulations on December 

8 9, 2003 (68 Fed. Reg. 68698) (relating to account9 ability for the academic achievement of students 

10 with the most significant cognitive disabilities); or 

11 (2) any regulation or guidance that, subsequent 

12 to the date of such original determination, was 

13 issued by the Secretary relating to— 

14 (A) the assessment of limited English pro15 ficient children; 

16 (B) the inclusion of limited English pro17 ficient children as part of the subgroup de18 scribed in section 1111(b)(2)(C)(v)(II)(dd) of 

19 the Elementary and Secondary Education Act 

20 of 1965 (20 U.S.C. 6311(b)(2)(C)(v)(II)(dd)) 

21 after such children have obtained English pro22 ficiency; or 

23 (C) any requirement under section 

24 1111(b)(2)(I)(ii) of the Elementary and Sec-
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1 ondary Education Act of 1965 (20 U.S.C. 

2 6311(b)(2)(I)(ii)). 

3 (e) EFFECT OF REVISED DETERMINATION.— 

4 (1) IN GENERAL.—If pursuant to a review 

5 under this section a local educational agency deter6 mines that a school made adequate yearly progress 

7 for the 2002–2003 school year, upon such deter8 mination— 

9 (A) any action by the Secretary, the State 

10 educational agency, or the local educational 

11 agency that was taken because of a prior deter12 mination that the school did not make such 

13 progress shall be terminated; and 

14 (B) any obligations or actions required of 

15 the local educational agency or the school be16 cause of the prior determination shall cease to 

17 be required. 

18 (2) EXCEPTIONS.—Notwithstanding paragraph 

19 (1), a determination under this section shall not af20 fect any obligation or action required of a local edu21 cational agency or school under the following: 

22 (A) Section 1116(b)(13) of the Elementary 

23 and Secondary Education Act of 1965 (20 

24 U.S.C. 6316(b)(13)) (requiring a local edu25 cational agency to continue to permit a child 
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1 who transferred to another school under such 

2 section to remain in that school until comple3 tion of the highest grade in the school). 

4 (B) Section 1116(e)(8) of the Elementary 

5 and Secondary Education Act of 1965 (20 

6 U.S.C. 6316(e)(8)) (requiring a local edu7 cational agency to continue to provide supple8 mental educational services under such section 

9 until the end of the school year). 

10 (3) SUBSEQUENT DETERMINATIONS.—In deter11 mining whether a school is subject to school im12 provement, corrective action, or restructuring as a 

13 result of not making adequate yearly progress, the 

14 Secretary, a State educational agency, or a local 

15 educational agency may not take into account a de16 termination that the school did not make adequate 

17 yearly progress for the 2002–2003 school year if 

18 such determination was revised under this section 

19 and the school received a final determination of hav20 ing made adequate yearly progress for the 2002– 

21 2003 school year. 

22 (f) NOTIFICATION.—The Secretary— 

23 (1) shall require each State educational agency 

24 to notify each school served by the agency of the 
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1 school’s ability to request a review under this section; 

2 and 

3 (2) not later than 30 days after the date of the 

4 enactment of this section, shall notify the public by 

5 means of the Department of Education’s website of 

6 the review process established under this section. 

7 SEC. 3. REVIEW OF ADEQUATE YEARLY PROGRESS DETER8 MINATIONS FOR LOCAL EDUCATIONAL AGEN9 CIES FOR THE 2002–2003 SCHOOL YEAR. 

10 (a) IN GENERAL.—The Secretary shall require each 

11 State educational agency to provide each local educational 

12 agency in the State with an opportunity to request a re13 view of a determination by the State educational agency 

14 that the local educational agency did not make adequate 

15 yearly progress for the 2002–2003 school year. 

16 (b) APPLICATION OF CERTAIN PROVISIONS.—Except 

17 as inconsistent with, or inapplicable to, this section, the 

18 provisions of section 2 shall apply to review by a State 

19 educational agency of a determination described in sub20 section (a) in the same manner and to the same extent 

21 as such provisions apply to review by a local educational 

22 agency of a determination described in section 2(a). 

23 SEC. 4. DEFINITIONS. 

24 In this Act: 
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1 (1) The term ‘‘adequate yearly progress’’ has 

2 the meaning given to that term in section 

3 1111(b)(2)(C) of the Elementary and Secondary 

4 Education Act of 1965 (20 U.S.C. 6311(b)(2)(C)). 

5 (2) The term ‘‘local educational agency’’ means 

6 a local educational agency (as that term is defined 

7 in section 9101 of the Elementary and Secondary 

8 Education Act of 1965 (20 U.S.C. 7801)) receiving 

9 funds under part A of title I of such Act (20 U.S.C. 

10 6311 et seq.). 

11 (3) The term ‘‘Secretary’’ means the Secretary 

12 of Education. 

13 (4) The term ‘‘school’’ means an elementary 

14 school or a secondary school (as those terms are de15 fined in section 9101 of the Elementary and Sec16 ondary Education Act of 1965 (20 U.S.C. 7801)) 

17 served under part A of title I of such Act (20 U.S.C. 

18 6311 et seq.). 

19 (5) The term ‘‘State educational agency’’ means 

20 a State educational agency (as that term is defined 

21 in section 9101 of the Elementary and Secondary 

22 Education Act of 1965 (20 U.S.C. 7801)) receiving 

23 funds under part A of title I of such Act (20 U.S.C. 

24 6311 et seq.). 

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