II 

111TH CONGRESS 

2D SESSION S. 3316 

To provide for flexibility and improvements in elementary and secondary 

education, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 5, 2010 

Ms. COLLINS (for herself and Ms. SNOWE) introduced the following bill; which 

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

Labor, and Pensions 

A BILL 

To provide for flexibility and improvements in elementary 

and secondary education, 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 Flexibility and Improvements Act’’. 

6 SEC. 2. DISCRETION TO MODIFY ADEQUATE YEARLY 

7 PROGRESS TIMELINE. 

8 Section 1111(b)(2)(F) of the Elementary and Sec9 ondary Education Act of 1965 (20 U.S.C. 6311(b)(2)(F)) 

10 is amended— 


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1 (1) by striking ‘‘(F) TIMELINE.—Each State’’ 

2 and inserting the following: 

3 ‘‘(F) TIMELINE.— 

4 ‘‘(i) IN GENERAL.—Each State’’; and 

5 (2) by adding at the end the following: 

6 ‘‘(ii) DISCRETION OF SECRETARY TO

7 MODIFY THE TIMELINE.—Every 3 years, 

8 the Secretary— 

9 ‘‘(I) shall review the require10 ments of the timeline established in 

11 clause (i); and 

12 ‘‘(II) may issue guidance or regu13 lations modifying such requirements if 

14 the Secretary determines, at the Sec15 retary’s discretion and after a review 

16 of the progress of the States towards 

17 making adequate yearly progress for 

18 the 2013–2014 school year, that 

19 modifications to the timeline are in 

20 the interests of improving student 

21 achievement and are in keeping with 

22 the purposes of this title.’’. 


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1 SEC. 3. ALTERNATIVE ACCOUNTABILITY SYSTEMS. 

2 Section 1111(b)(2) of the Elementary and Secondary 

3 Education Act of 1965 (20 U.S.C. 6311(b)(2)) is further 

4 amended— 

5 (1) by striking subparagraph (I) and inserting 

6 the following: 

7 ‘‘(I) ANNUAL IMPROVEMENT FOR

8 SCHOOLS.— 

9 ‘‘(i) IN GENERAL.—Each year, for a 

10 school to make adequate yearly progress 

11 under this paragraph— 

12 ‘‘(I) each group of students de13 scribed in subparagraph (C)(v) must 

14 meet or exceed the objectives set by 

15 the State under subparagraph (G), ex16 cept that if any group described in 

17 subparagraph (C)(v) does not meet 

18 those objectives in any particular 

19 year, the school shall be considered to 

20 have made adequate yearly progress 

21 if— 

22 ‘‘(aa) the percentage of stu23 dents in that group who did not 

24 meet or exceed the proficient 

25 level of academic achievement on 

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1 graph (3) decreased by 5 percent 

2 over the past year, or an aggre3 gate of 10 percent over 2 years, 

4 and that group has made 

5 progress on 1 or more of the aca6 demic indicators described in 

7 clause (vi) or (vii) of subpara8 graph (C); or 

9 ‘‘(bb) the students in that 

10 group demonstrate that the stu11 dents are making progress to12 wards proficiency through an ad13 ditional model or system for 

14 measuring student progress de15 scribed in subparagraph (J) and 

16 that group has made progress on 

17 one or more of the academic indi18 cators described in clause (vi) or 

19 (vii) of subparagraph (C); and 

20 ‘‘(II) not less than 95 percent of 

21 each group of students described in 

22 subparagraph (C)(v) who are enrolled 

23 in the school are required to take the 

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1 modations, guidelines, and alternative 

2 assessment provided in the same man3 ner as those provided under section 

4 612(a)(16)(A) of the Individuals with 

5 Disabilities Education Act and para6 graph (3), on which adequate yearly 

7 progress is based (except that the 95 

8 percent requirement described in this 

9 clause shall not apply in a case in 

10 which the number of students in a 

11 category is insufficient to yield statis12 tically reliable information or the re13 sults would reveal personally identifi14 able information about an individual 

15 student). 

16 ‘‘(ii) CHILDREN WITH DISABIL17 ITIES.—In the case of a child with a dis18 ability (as defined in section 602(3) of the 

19 Individuals with Disabilities Education 

20 Act), a State may deem the child to have 

21 met the State’s proficient level of academic 

22 achievement on the State assessments for 

23 purposes of calculating adequate yearly 

24 progress under this section if— 


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1 ‘‘(I) the student’s individualized 

2 education program team (as defined 

3 in section 614(d)(1)(B) of such Act) 

4 designates an alternate assessment 

5 based on alternate or modified student 

6 academic achievement standards as a 

7 more appropriate measure of the stu8 dent’s academic progress and achieve9 ment for purposes of the assessment 

10 requirements under this part; and 

11 ‘‘(II) the student achieves a pro12 ficient score on such alternate assess13 ment. 

14 ‘‘(iii) STATE EDUCATIONAL AGENCY

15 REPORT.—For any year that a State edu16 cational agency makes use of the flexibility 

17 provided by this section to allow alternate 

18 assessments for more than 3 percent of the 

19 total student population statewide, the 

20 State educational agency shall make avail21 able to the public a report that includes 

22 the percentage of all special education stu23 dents in the State who were assessed ac24 cording to clause (ii).’’; 


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1 (2) by redesignating subparagraphs (J) and (K) 

2 as subparagraphs (L) and (M), respectively; and 

3 (3) by inserting after subparagraph (I) (as 

4 amended by paragraph (1)) the following: 

5 ‘‘(J) ADDITIONAL MODELS AND SYSTEMS

6 FOR MEASURING STUDENT PROGRESS.—In de7 veloping a single, statewide State accountability 

8 system pursuant to subparagraph (A), a State 

9 may establish models and systems for meas10 uring student progress for purposes of deter11 mining whether an agency or school has made 

12 adequate yearly progress that are in addition to 

13 the models and systems otherwise described in 

14 this paragraph if the models and systems are in 

15 keeping with the purposes of this title. Addi16 tional models and systems that measure student 

17 progress under this paragraph may include— 

18 ‘‘(i) cohort growth models that— 

19 ‘‘(I) demonstrate progress based 

20 on longitudinal student assessment re21 sults indicating improvement in the 

22 academic performance of the same co23 hort of students over time; and 

24 ‘‘(II) may in some instances 

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1 ferent intermediate goals, and dif2 ferent annual measurable objectives 

3 for different cohorts; 

4 ‘‘(ii) indexing systems that dem5 onstrate progress based on improvement in 

6 assessment scores for students below the 

7 proficient level, such as improvements from 

8 the below basic to basic level, or from basic 

9 to another intermediate level below the 

10 proficient level, if the system does not in11 clude improvement in students scores for 

12 students who scored at the proficient level 

13 and higher; or 

14 ‘‘(iii) a system that demonstrates 

15 progress based on improvements in closing 

16 the achievement gap or making progress 

17 toward another State-established high18 achievement target, such as a system that 

19 demonstrates progress towards having all 

20 subgroups meet or exceed the current per21 centage of proficient students at the 

22 State’s top-performing schools (such as the 

23 top 20 percent of schools), if the system 

24 requires continued improvement towards 


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1 subsequently higher targets until all stu2 dents have reached the proficient level. 

3 ‘‘(K) REQUIREMENT FOR GUIDANCE FROM

4 THE SECRETARY ON ADDITIONAL MODELS AND

5 SYSTEMS FOR MEASURING STUDENT

6 PROGRESS.—Not later than 120 days after the 

7 date of enactment of the No Child Left Behind 

8 Flexibility and Improvements Act, the Secretary 

9 shall establish specific models of additional 

10 models and systems for measuring student 

11 progress that meet the requirements of sub12 paragraph (J), including models of cohort13 growth systems, indexing systems, or high14 achievement target systems described in such 

15 subparagraph. To the extent possible, the mod16 els shall demonstrate the maximum amount of 

17 flexibility available under this part in the design 

18 of additional models and systems for measuring 

19 student progress. In addition, the Secretary 

20 shall create a task force to provide guidance 

21 and other technical assistance to those States 

22 interested in incorporating additional models 

23 and systems for measuring student progress 

24 into their State accountability plan.’’. 


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1 SEC. 4. STATE OPTION REGARDING STUDENTS WITH LIM2 ITED ENGLISH PROFICIENCY. 

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

4 Education Act of 1965 (20 U.S.C. 6311(b)(2)) (as amend5 ed by section 3) is further amended by adding at the end 

6 the following: 

7 ‘‘(N) STATE OPTION REGARDING STU8 DENTS WITH LIMITED ENGLISH PRO9 FICIENCY.— 

10 ‘‘(i) IN GENERAL.—In determining 

11 whether a school, local educational agency, 

12 or State has made adequate yearly 

13 progress under this subsection, a State 

14 shall have the option to include in the stu15 dents with limited English proficiency sub16 group a student who was formerly included 

17 in the subgroup and subsequently acquired 

18 proficiency in English. 

19 ‘‘(ii) DURATION OF INCLUSION IN

20 THE SUBGROUP.—A State may include a 

21 student described in clause (i) in the stu22 dents with limited English proficiency sub23 group until the student completes sec24 ondary school. 


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1 ‘‘(iii) RULES OF CONSTRUCTION.— 

2 Nothing in this subparagraph shall be con3 strued— 

4 ‘‘(I) to count a student described 

5 in clause (i) as a student with limited 

6 English proficiency for purposes of— 

7 ‘‘(aa) determining a State8 defined minimum subgroup size; 

9 and 

10 ‘‘(bb) allocating funds under 

11 title III; or 

12 ‘‘(II) to require a student de13 scribed in clause (i)— 

14 ‘‘(aa) to continue to take a 

15 limited English proficiency as16 sessment under paragraph (7); 

17 and 

18 ‘‘(bb) to receive language 

19 services provided to students with 

20 limited English proficiency.’’. 

21 SEC. 5. LOCAL ACADEMIC ASSESSMENTS. 

22 Section 1111(b)(3)(A) of the Elementary and Sec23 ondary Education Act of 1965 (20 U.S.C. 6311(b)(3)(A)) 

24 is amended— 


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1 (1) by striking ‘‘(A) IN GENERAL.—Each State 

2 plan’’ and inserting the following: 

3 ‘‘(A) IMPLEMENTATION OF ASSESS4 MENTS.— 

5 ‘‘(i) IN GENERAL.—Each State plan’’; 

6 and 

7 (2) by adding at the end the following: 

8 ‘‘(ii) RULE OF CONSTRUCTION RE9 GARDING USE OF LOCAL ASSESSMENTS.— 

10 Nothing in this Act shall be construed to 

11 prohibit a State from using a local assess12 ment system or a mixed system of State 

13 and local assessments in carrying out 

14 clause (i), if the assessment system— 

15 ‘‘(I) is aligned with the State’s 

16 content and achievement standards 

17 and provides coherent information 

18 about student attainment of those 

19 standards; 

20 ‘‘(II) is valid and reliable, and 

21 consistent with relevant professional 

22 and technical standards; 

23 ‘‘(III) provides individual student 

24 reports and itemized score analysis; 

25 and 


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1 ‘‘(IV) allows the State to aggre2 gate, with confidence, data from dis3 parate local assessments. 

4 ‘‘(iii) REQUIRED TECHNICAL ASSIST5 ANCE.—Not later than 120 days after the 

6 date of enactment of the No Child Left 

7 Behind Flexibility and Improvements Act, 

8 the Secretary shall provide models of local 

9 assessment systems or mixed systems of 

10 State and local assessments meeting the 

11 requirements described in clause (ii), and 

12 shall provide guidance and technical assist13 ance to States on ways that these systems 

14 may be used to satisfy the assessment re15 quirements of this part.’’. 

16 SEC. 6. DEFERRAL OF ACADEMIC ASSESSMENTS. 

17 Section 1111(b)(3)(D) of the Elementary and Sec18 ondary Education Act of 1965 (20 U.S.C. 6311(b)(3)(D)) 

19 is amended by striking clauses (i) through (iv) and insert20 ing the following: 

21 ‘‘(i) $640,000,000 for fiscal year 

22 2010; and 

23 ‘‘(ii) $670,000,000 for fiscal year 

24 2011.’’. 


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1 SEC. 7. ADEQUATE YEARLY PROGRESS BY GROUP AND SUB2 JECT. 

3 Section 1116(b) of the Elementary and Secondary 

4 Education Act of 1965 (20 U.S.C. 6316(b)) is amended— 

5 (1) in subparagraph (A) of paragraph (1), by 

6 inserting ‘‘with respect to the performance of a par7 ticular group of students described in section 

8 1111(b)(2)(C)(v) in the same academic subject,’’ 

9 after ‘‘that fails, for 2 consecutive years,’’; 

10 (2) in the matter preceding subparagraph (A) 

11 of paragraph (5), by inserting ‘‘with respect to the 

12 performance of a particular group of students de13 scribed in section 1111(b)(2)(C)(v) in the same aca14 demic subject,’’ after ‘‘that fails to make adequate 

15 yearly progress,’’; 

16 (3) in the matter preceding clause (i) of para17 graph (7)(C), by inserting ‘‘with respect to the per18 formance of a particular group of students described 

19 in section 1111(b)(2)(C)(v) in the same academic 

20 subject,’’ after ‘‘that fails to make adequate yearly 

21 progress,’’; and 

22 (4) in the matter preceding clause (i) of para23 graph (8)(A), by inserting ‘‘with respect to the per24 formance of a particular group of students described 

25 in section 1111(b)(2)(C)(v) in the same academic 


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1 subject,’’ after ‘‘continues to fail to make adequate 

2 yearly progress,’’. 

3 SEC. 8. MODIFICATION OF THE DEFINITION OF HIGHLY 

4 QUALIFIED TEACHER. 

5 (a) IN GENERAL.—Subpart 1 of part A of title I of 

6 the Elementary and Secondary Education Act of 1965 (20 

7 U.S.C. 6311 et seq.) is amended by adding at the end 

8 the following: 

9 ‘‘SEC. 1120C. MODIFICATION OF THE DEFINITION OF HIGH10 LY QUALIFIED TEACHER. 

11 ‘‘(a) HIGHLY QUALIFIED TEACHERS OF MULTIPLE

12 ACADEMIC SUBJECTS.—Notwithstanding section 

13 9101(23) or any other provision of law, a middle or sec14 ondary school teacher employed to teach multiple aca15 demic subjects shall be deemed to be highly qualified for 

16 purposes of this part, if— 

17 ‘‘(1) the teacher meets the requirements of sec18 tion 9101(23)(A); 

19 ‘‘(2) the teacher has a bachelor’s degree; 

20 ‘‘(3) the teacher has demonstrated a high level 

21 of competency in at least one subject taught by the 

22 teacher by— 

23 ‘‘(A) passing a test described in section 

24 9101(23)(B)(ii)(I) that is applicable to such 

25 subject; or 


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1 ‘‘(B) successful completion of a course of 

2 study, certification, or credential described in 

3 section 9101(23)(B)(ii) that is applicable to 

4 such subject; and 

5 ‘‘(4)(A) the State educational agency makes a 

6 determination, for a period of not more than 3 years 

7 at a time, that— 

8 ‘‘(i) the teacher should be considered high9 ly qualified for purposes of this part based on 

10 a showing that the teacher is making progress 

11 toward becoming highly qualified as defined in 

12 section 9101(23); and 

13 ‘‘(ii) at the time the State educational 

14 agency makes such determination, the teacher 

15 teaches in a local educational agency of the 

16 State that has provided the State educational 

17 agency with evidence (that may include the fact 

18 that the local educational agency serves a small 

19 and rural school facing unique staffing or hir20 ing challenges that require teachers to teach 

21 multiple academic subjects) that the local edu22 cational agency has made a reasonable effort to 

23 provide teachers who are highly qualified as de24 fined in section 9101(23) to every student 

25 served by the local educational agency; or 


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1 ‘‘(B) the teacher has an academic minor con2 sisting of not less than 15 credit hours, or the equiv3 alent of an academic minor as defined by the State 

4 educational agency in its State plan pursuant to sec5 tion 1119(a)(2), in each academic subject that is 

6 taught by the teacher (other than a subject for 

7 which the teacher has demonstrated a high level of 

8 competency under paragraph (3)), and each such 

9 subject is related to a subject for which the teacher 

10 has demonstrated a high level of competency under 

11 paragraph (3). 

12 ‘‘(b) REPORT.—For each year that a teacher in a 

13 State is deemed to be highly qualified under subsection 

14 (a), the State educational agency in the State shall make 

15 available to the public a report that includes— 

16 ‘‘(1) the number of teachers in the State that 

17 are deemed highly qualified under subsection (a); 

18 and 

19 ‘‘(2) the total amount of subgrant funds made 

20 available under subpart 2 of part A of title II that 

21 the State awards to local educational agencies under 

22 such subpart that are available to assist the teachers 

23 described in paragraph (1) with the process of be24 coming highly qualified as defined in section 

25 9101(23).’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 the Elementary and Secondary Education Act of 1965 is 

3 amended by inserting after the item relating to section 

4 1120B the following: 

‘‘Sec. 1120C. Modification of the definition of highly qualified teacher.’’. 

5 SEC. 9. REAUTHORIZATION OF READING FIRST AND EARLY 

6 READING FIRST PROGRAMS. 

7 (a) AUTHORIZATION OF APPROPRIATIONS.—Section 

8 1002(b) of the Elementary and Secondary Education Act 

9 of 1965 (20 U.S.C. 6302(b)) is amended— 

10 (1) in paragraph (1), by striking ‘‘2002’’ and 

11 inserting ‘‘2010’’; and 

12 (2) in paragraph (2), by striking ‘‘2002’’ and 

13 inserting ‘‘2010’’. 

14 (b) USE OF FUNDS FOR READING ACTIVITIES.— 

15 (1) FINDING.—Congress finds that, based on 

16 the Office of Inspector General of the Department of 

17 Education’s September 2006 report entitled ‘‘The 

18 Reading First Program’s Grant Application Proc19 ess’’, it is crucial to achieving the goals of the Read20 ing First program under subpart 1 of part B of title 

21 I of the Elementary and Secondary Education Act 

22 of 1965 (20 U.S.C. 6361 et seq.) that greater flexi23 bility is afforded to program participants, including 

24 allowing participants to choose from a variety of sci25 entifically based reading programs. 


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1 (2) USE OF FUNDS FOR READING ACTIVI2 TIES.—Section 1202(c)(7) of the Elementary and 

3 Secondary Education Act of 1965 (20 U.S.C. 

4 6362(c)(7)) is amended by adding at the end the fol5 lowing: 

6 ‘‘(C) READING ACTIVITIES FOR INDI7 VIDUAL STUDENTS.—Notwithstanding any 

8 other provision of this subpart, an eligible local 

9 educational agency may use the funds provided 

10 under the subgrant for any activity described in 

11 subparagraph (A) that is provided to a student 

12 in a manner other than on a classwide instruc13 tion basis, including small group instruction 

14 and one-to-one instruction.’’. 

15 SEC. 10. DEFINITION OF HIGHLY QUALIFIED. 

16 Section 9101(23)(B)(ii)(II) of the Elementary and 

17 Secondary Education Act of 1965 (20 U.S.C. 

18 7801(23)(B)(ii)(II)) is amended by striking 

19 ‘‘credentialing; and’’ and inserting the following: 

20 ‘‘credentialing, 

21 ‘‘except that the Secretary shall promul22 gate regulations permitting a teacher to 

23 demonstrate subject area competence in 

24 history, geography, economics, government, 

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1 ondary schools in the State through a 

2 State social studies certificate that quali3 fies the teacher to teach such subjects; 

4 and’’. 

Æ 


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