I 

108TH CONGRESS 

2D SESSION H. R. 4605 

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 HOUSE OF REPRESENTATIVES 

JUNE 17, 2004 

Mr. GEORGE MILLER of California (for himself, Ms. PELOSI, Mr. KILDEE, 

Mr. HOYER, Mr. OWENS, Mr. PAYNE, Mr. ANDREWS, Mr. CLYBURN, Mr. 

MENENDEZ, Ms. WOOLSEY, Mr. HINOJOSA, Mrs. MCCARTHY of New 

York, Mr. TIERNEY, Mr. KIND, Mr. KUCINICH, Mr. WU, Mr. HOLT, Mr. 

DAVIS of Illinois, Mr. GRIJALVA, Ms. MAJETTE, Mr. RYAN of Ohio, and 

Mr. BISHOP of New York) introduced the following bill; which was referred to the Committee on Education and the Workforce 

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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1 SEC. 2. REVIEW OF DETERMINATIONS ON WHETHER 

2 SCHOOLS MADE ADEQUATE YEARLY 

3 PROGRESS FOR 2002–2003 SCHOOL YEAR. 

4 (a) IN GENERAL.—The Secretary of Education shall 

5 require each local educational agency to provide each 

6 school served by the agency with an opportunity to request 

7 a review of a determination by the agency that the school 

8 did not make adequate yearly progress for the 2002–2003 

9 school year. 

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

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

12 this section, a local educational agency shall issue and 

13 make publicly available a final determination on whether 

14 the school made adequate yearly progress for the 2002– 

15 2003 school year. 

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

17 section, a local educational agency shall— 

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

19 submit evidence on whether the school made ade20 quate yearly progress for the 2002–2003 school 

21 year; and 

22 (2) consider that evidence before making a final 

23 determination under subsection (b). 

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

25 under this section, consistent with the plan under section 

26 1111 of the Elementary and Secondary Education Act of 
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1 1965 (20 U.S.C. 6311) for the State involved, a local edu2 cational agency shall revise its original determination that 

3 a school did not make adequate yearly progress for the 

4 2002–2003 school year if the agency finds that the school 

5 made such progress taking 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 pre16 vious determination that the school did not make 

17 adequate yearly progress for the 2002–2003 school 

18 year if such determination was revised under this 

19 section and the school received a final determination 

20 of having made adequate yearly progress for the 

21 2002–2003 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 sec2 tion; 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 DETERMINATIONS ON WHETHER LOCAL 

8 EDUCATIONAL AGENCIES MADE ADEQUATE 

9 YEARLY PROGRESS FOR 2002–2003 SCHOOL 

10 YEAR. 

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

12 State educational agency to provide each local educational 

13 agency in the State with an opportunity to request a re14 view of a determination by the State educational agency 

15 that the local educational agency did not make adequate 

16 yearly progress for the 2002–2003 school year. 

17 (b) APPLICATION OF CERTAIN PROVISIONS.—Except 

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

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

20 educational agency of a determination described in sub21 section (a) in the same manner and to the same extent 

22 as such provisions apply to review by a local educational 

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

24 SEC. 4. DEFINITIONS. 

25 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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