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###### Department of Education

# AGENCY:

Department of Education. 

# ACTION:

Notice of written findings and compliance agreement with the Nebraska Department of Education. 

# SUMMARY:

                            This notice is being published in the                             **Federal Register**                             consistent with section 457(b)(2) of the General Education Provisions Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of Education (the Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply with the applicable program requirements until a future date.                         

                            On October 8, 2008, the Department entered into a compliance agreement with the Nebraska Department of Education (NDE). Section 457(b)(2) of GEPA requires the Department to publish written findings leading to a compliance agreement, with a copy of the compliance agreement, in the                             **Federal Register**                            .                         

# FOR FURTHER INFORMATION CONTACT:

Collette Roney, U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., room 3W210, Washington, DC 20202-6132. Telephone: (202) 401-5245. 

If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339. 

                            Individuals with disabilities may obtain this document in an accessible format (                            *e.g.*, Braille, large print, audiotape, or computer diskette) on request to the contact person listed under                             **FOR FURTHER INFORMATION CONTACT**                            .                         

# SUPPLEMENTARY INFORMATION:

Title I of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, requires each State receiving Title I funds to satisfy certain requirements. 

Under Title I, each State is required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State's academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each student's academic achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels. 

Title I also requires each State to implement a student assessment system to evaluate whether students are mastering the subject material reflected in the State's academic content standards. By the 2005-2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12. 

In addition to a general assessment, Title I requires States to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. 

Prior to the 2008-2009 school year, Nebraska employed a system of local assessments. Under this system, each local educational agency (LEA) in the State developed and administered its own standards and assessment system. In August 2007, NDE submitted evidence of its standards and assessment system to the Department. The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) submitted that evidence to a panel of experts for peer review. Following that review, the Assistant Secretary concluded that NDE's standards and assessment system did not meet a number of the Title I requirements. Subsequently, the Nebraska legislature passed Legislative Bill (LB) 1157, which requires the State to implement a statewide standards and assessment system in place of the former system of local assessments. 

Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient “is failing to comply substantially with any requirement of law” applicable to Federal program funds the Department administers. Specifically, the Department is authorized to—

(1) Withhold funds; 

(2) Compel compliance through a cease and desist order; 

(3) Enter into a compliance agreement with the recipient; or 

(4) Take any other action authorized by law. 

20 U.S.C. 1234c(a). 

In a letter dated October 11, 2007, to Douglas Christenson, Nebraska's then-Commissioner of Education, the Assistant Secretary notified NDE that, in order to remain eligible to receive Title I funds, it would have to enter into a compliance agreement with the Department. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). In order to enter into a compliance agreement with a recipient, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements. 

In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C 1234f(b), on July 10, 2008, Department officials conducted a public hearing in Nebraska to assess whether a compliance agreement with NDE might be appropriate. Robert Evnen of Nebraska's State Board of Education testified at this hearing. The Department considered the testimony provided at the July 2008 public hearing and all other relevant information and materials and concluded that NDE would not be able to correct its non-compliance with Title I standards and assessment requirements immediately, particularly in light of LB 1157, Nebraska's recently passed State law, which requires the State to implement a statewide standards and assessment system in place of the former system of local assessments. 

                        On December 19, 2008, the Assistant Secretary issued written findings, holding that compliance by NDE with the Title I standards and assessment requirements is genuinely not feasible until a future date. Under Title I, NDE was required to implement its final                               ( print page 4643)                            assessment system no later than the 2005-2006 school year. The evidence that NDE submitted in August 2007 indicated that, well after the statutory deadline had passed, its locally developed standards and assessment system still did not fully meet Title I requirements. In addition, due to the enormity and complexity of the work needed to bring NDE's standards and assessment system into full compliance, NDE cannot immediately comply with all of the Title I requirements.                     

The Assistant Secretary also determined that a compliance agreement represents a viable means of bringing about compliance because of the steps NDE had already taken to comply and the plan it had developed for further action. The compliance agreement sets out the action plan that NDE must implement to come into compliance with Title I requirements. This plan, coupled with specific reporting requirements, will allow the Assistant Secretary to monitor closely NDE's progress in meeting the terms of the compliance agreement. 

Nebraska's Deputy Commissioner of Education, Marge Harouff, signed the compliance agreement on October 2, 2008, and the Assistant Secretary signed the compliance agreement on October 8, 2008. 

As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Assistant Secretary's written findings is set forth as Appendix A and the compliance agreement is set forth as Appendix B of this notice. 

## Electronic Access to This Document 

                        You may view this document, as well as all other Department of Education documents published in the                         **Federal Register**                        , in text or Adobe Portable Document Format (PDF) on the Internet at the following site:                         *http://www.ed.gov/​news/​fedregister*.                    

To use PDF, you must have the Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530. 

# Note:

                            The official version of this document is the document published in the                             **Federal Register**                            . Free Internet access to the official edition of the                             **Federal Register**                             and the Code of Federal Regulations is available on GPO Access at:                             *http://www.gpoaccess.gov/​nara/​index.html*.                        

(Authority: 20 U.S.C. 1234c, 1234f)

Dated: January 16, 2009. 

Kerri L. Briggs, 

Assistant Secretary for Elementary and Secondary Education. 

## Appendix A 

## Written Findings of the Assistant Secretary for Elementary and Secondary Education Regarding the Compliance Agreement Between the U.S. Department of Education and the Nebraska Department of Education 

## I. Introduction 

                            The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) of the U.S. Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, that the Nebraska Department of Education (NDE) has failed to comply substantially with certain requirements of Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), as amended by the No Child Left Behind Act of 2001, 20 U.S.C. 6301*et seq.*, and that it is genuinely not feasible for NDE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that NDE did not meet, within the statutory timeframe, a number of the Title I requirements for Nebraska's general and alternate assessments under section 1111(b)(3) of Title I.                         

For the following reasons, the Assistant Secretary has concluded that it would be appropriate to enter into a compliance agreement with NDE. During the effective period of the compliance agreement, which ends October 8, 2011, NDE will be eligible to receive Title I funds as long as it complies with the terms and conditions of the agreement as well as the provisions of Title I and other applicable Federal statutory and regulatory requirements. 

## II. Relevant Statutory and Regulatory Provisions 

### A. Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 

Title I provides financial assistance, through State educational agencies, to local educational agencies to provide services in high-poverty schools to students who are failing or at risk of failing to meet the State's student academic achievement standards. Under Title I, each State, including the District of Columbia and Puerto Rico, was required to adopt academic content and student academic achievement standards in at least mathematics, reading or language arts, and science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Academic achievement standards must be aligned with the State's academic content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each student's academic achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels. 

Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State's academic content standards. By the 2005-2006 school year, States were required to administer mathematics and reading or language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State was required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12. A State's assessment system must: 
    - Be the same assessment system used to measure the achievement of all public school students in the State;
    - Be designed to provide coherent information about student attainment of State academic content standards across grades and subjects;
    - Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient (LEP) students;
    - Be aligned with the State's academic content and student academic achievement standards;
    - Express student results in terms of the State's student academic achievement standards;
    - Be valid, reliable, and of adequate technical quality for the purposes for which they are used and be consistent with nationally recognized professional and technical standards;
    - Involve multiple measures of student academic achievement, including measures that assess higher order thinking skills and understanding of challenging content;
    - Objectively measure academic achievement, knowledge, and skills without evaluating or assessing personal family beliefs and attitudes;
    - Enable results to be disaggregated by gender, each major racial and ethnic group, migrant status, students with disabilities, English proficiency status, and economically disadvantaged students;
    - Provide individual student reports; and
    - Enable itemized score analyses.

20 U.S.C. 6311(b)(3); 34 CFR 200.2

In addition to a general assessment, States were required to develop and administer at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. 34 CFR 200.6(a)(2). An alternate assessment may be based on grade-level academic achievement standards, alternate academic achievement standards, or modified academic achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. 

### B. The General Education Provisions Act 

                            The General Education Provisions Act (GEPA) provides a number of options when                                   ( print page 4644)                                the Assistant Secretary determines a recipient of Department funds is “failing to comply substantially with any requirement of law applicable to such funds.” 20 U.S.C. 1234c. In such a case, the Assistant Secretary is authorized to:                         

(1) Withhold funds; 

(2) Compel compliance through a cease and desist order; 

(3) Enter into a compliance agreement with the recipient; or 

(4) Take any other action authorized by law.

20 U.S.C. 1234c(a)

                            Under section 457 of GEPA, the Assistant Secretary may enter into a compliance agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). Before entering into a compliance agreement with a recipient, the Assistant Secretary must hold a hearing at which the recipient, affected students and parents or their representatives, and other interested parties are invited to participate. At that hearing, the recipient has the burden of persuading the Assistant Secretary that full compliance with applicable requirements of law is not feasible until a future date. 20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence presented, the Assistant Secretary determines that full compliance is genuinely not feasible until a future date, the Assistant Secretary must make written findings to that effect and must publish those findings, together with the substance of any compliance agreement, in the                             **Federal Register**                            . 20 U.S.C. 1234f(b)(2).                         

A compliance agreement must contain the terms and conditions with which the recipient must comply during the period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of the terms and conditions of the compliance agreement, the Assistant Secretary may consider the agreement to be no longer in effect, and may take any of the compliance actions set forth above. 20 U.S.C. 1234f(d). 

## III. Analysis 

In deciding whether a compliance agreement between the Assistant Secretary and NDE is appropriate, the Assistant Secretary must determine whether compliance by NDE with the Title I standards and assessment requirements is genuinely not feasible until a future date. 20 U.S.C. 1234f(b)(2). 

### A. NDE Has Failed To Comply Substantially With Title I Standards and Assessment Requirements 

Prior to the 2008-2009 school year, Nebraska employed a system of local assessments. Under this system, each local educational agency (LEA) in the state developed and administered its own standards and assessment system. In August 2007, NDE submitted evidence of its standards and assessment system, which the Assistant Secretary submitted to a panel of experts for peer review. Following that review, the Assistant Secretary concluded that NDE's standards and assessment system did not meet a number of the Title I requirements for standards and assessments. 

                            In April 2008, the Nebraska legislature passed Legislative Bill 1157, which requires the state to implement a statewide standards and assessment system in place of the former system of local assessments. In light of this new state law, the Assistant Secretary has determined that, to demonstrate that its statewide standards and assessment system complies with Title I requirements, NDE must submit evidence to satisfy each component of the Department's December 2007                             *Standards and Assessment Peer Review Guidance: Information and Examples for Meeting Requirements of the No Child Left Behind Act of 2001*                             (available at:                             *http://www.ed.gov/​policy/​elsec/​guid/​saaprguidance.doc*). In particular, NDE must submit evidence pertaining to each of the following required components of standards and assessment systems:                         

1. Academic content standards; 

2. Academic achievement standards; 

3. Full assessment system; 

4. Technical quality; 

5. Alignment; 

6. Inclusion; and 

7. Reporting. 

### B. NDE Cannot Immediately Correct Its Noncompliance With the Title I Standards and Assessment Requirements 

Under Title I, NDE was required to implement its final standards and assessment system no later than the 2005-2006 school year. 20 U.S.C. 6311(b)(3). The evidence that NDE submitted in August 2007 indicated that, well after the statutory deadline had passed, its standards and assessment system still did not fully meet Title I requirements. Moreover, the state law that was passed in 2008 effectively requires Nebraska to begin anew in developing and implementing a statewide system of standards and assessments years after it was required to have compliant standards and assessments in place. Due to the enormity and complexity of the work that is needed to bring NDE's standards and assessment system into full compliance, NDE cannot immediately comply with all of the Title I requirements. As a result, the Assistant Secretary finds that it is genuinely not feasible for NDE to come into compliance with the applicable requirements of law until a future date. 

### C. NDE Can Meet the Terms and Conditions of a Compliance Agreement 

At the public hearing, which was held on July 10, 2008, Robert Evnen of Nebraska's State Board of Education testified that it was not feasible for NDE to come into compliance with the Title I standards and assessment requirements until a future date. NDE has developed a comprehensive action plan, incorporated into the compliance agreement, which sets out a very specific schedule that NDE has agreed to meet for attaining compliance with the Title I standards and assessment requirements. As a result, NDE is committed to meeting a stringent, but reasonable, schedule for coming into compliance with the applicable requirements. The action plan also sets out documentation and reporting requirements with which NDE must comply. These provisions will allow the Assistant Secretary to ascertain promptly whether NDE is meeting each of its commitments under the compliance agreement. 

## IV. Conclusion 

*For the foregoing reasons, the Assistant Secretary finds the following:*                             (1) That full compliance by NDE with the standards and assessment requirements of Title I is genuinely not feasible until a future date; and (2) that NDE can meet the terms and conditions of the attached compliance agreement. Therefore, the Assistant Secretary has determined that it is appropriate to enter into a compliance agreement with NDE.                         

Dated: December 19, 2008. 

Kerri L. Briggs, 

Assistant Secretary for Elementary and Secondary Education. 

## Appendix B 

## Compliance Agreement Under Title I of the Elementary and Secondary Education Act Between the United States Department of Education and the Nebraska Department of Education 

Title I of the Elementary and Secondary Education Act (ESEA) of 1965 (Title I), as amended by the No Child Left Behind Act (NCLB) of 2001, requires each State receiving Title I funds to satisfy certain requirements. 

Each State was required to adopt academic content and achievement standards in at least mathematics, reading/language arts, and, beginning in the 2005-2006 school year, science. These standards must include the same knowledge and levels of achievement expected of all public school students in the State. Content standards must specify what all students are expected to know and be able to do; contain coherent and rigorous content; and encourage the teaching of advanced skills. Achievement standards must be aligned with the State's content standards and must describe at least three levels of proficiency to determine how well students in each grade are mastering the content standards. A State must provide descriptions of the competencies associated with each achievement level and must determine the assessment scores (“cut scores”) that differentiate among the achievement levels. 

Each State was also required to implement a student assessment system used to evaluate whether students are mastering the subject material reflected in the State's academic standards. By the 2005-2006 school year, States were required to administer mathematics and reading/language arts assessments yearly during grades 3-8 and once during grades 10-12. Further, beginning with the 2007-2008 school year, each State is required to administer a science assessment in at least one grade in each of the following grade spans: 3-5, 6-9, and 10-12. A State's assessment system must: 
    - Be the same assessment system used to measure the achievement of all public school students in the State;       ( print page 4645)      
    - Be designed to provide coherent information about student attainment of State standards across grades and subjects;
    - Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient (LEP) students;
    - Be aligned with the State's content and achievement standards;
    - Express student results in terms of the State's student achievement standards;
    - Be valid, reliable, and of adequate technical quality for the purpose for which they are used and be consistent with nationally recognized professional and technical standards;
    - Involve multiple measures of student academic achievement, including measures that assess higher order thinking skills and understanding of challenging content;
    - Objectively measure academic achievement, knowledge, and skills without evaluating or assessing personal family beliefs and attitudes;
    - Enable results to be disaggregated by gender, each major racial and ethnic group, migrant status, English proficiency status, students with disabilities, and economically disadvantaged students;
    - Provide individual student reports; and
    - Enable itemized score analyses.

In addition to a general assessment, States were required to develop at least one alternate assessment for students with disabilities who cannot participate in the general assessment, with or without accommodations. An alternate assessment may be based on grade-level achievement standards, alternate achievement standards, or modified achievement standards. Like the general assessment, any alternate assessment must satisfy the requirements for high technical quality, including validity, reliability, accessibility, objectivity, and consistency with nationally recognized professional and technical standards. 

The Nebraska Department of Education (NDE) was unable to timely meet certain of the requirements for its standards and assessment system. In order to be eligible to continue to receive Title I funds while working to comply with the statutory and regulatory requirements from this point forward, Nebraska's Commissioner of Education indicated NDE's interest in entering into a compliance agreement with the United States Department of Education (Department). On July 10, 2008, the Department conducted a public hearing regarding (1) whether NDE's full compliance with Title I is not feasible until a future date, and (2) whether NDE is able to come into compliance with the Title I standards and assessment requirements within three years. 

                            Pursuant to this Compliance Agreement under 20 U.S.C. section 1234f, NDE must be in full compliance with the statutory and regulatory requirements, as they may exist from this point forward, no later than three years from the date of the Assistant Secretary's written findings, a copy of which is attached to, and incorporated by reference into, this Agreement. In order to achieve compliance with the standards and assessment requirements, NDE must submit evidence to satisfy each component of the Department's December 2007                             *Standards and Assessment Peer Review Guidance: Information and Examples for Meeting Requirements of the No Child Left Behind Act of 2001*                             (available at:                             *http://www.ed.gov/​policy/​elsec/​guid/​saaprguidance.doc*). This includes documentation for each of the seven elements identified in that non-regulatory guidance:                         

1. Academic content standards; 

2. Academic achievement standards; 

3. Full assessment system; 

4. Technical quality; 

5. Alignment; 

6. Inclusion; and 

7. Reporting. 

During the duration of this Compliance Agreement, NDE is eligible to receive Title I, Part A funds if it complies with the terms and conditions of this Agreement, and all other provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements that are not specifically addressed by this Agreement. The attached action steps are a detailed plan and specific timeline for how NDE intends to come into compliance with the Title I standards and assessment requirements as they currently exist and how NDE intends to demonstrate that it has come into compliance with those requirements. Except as specified herein, these action steps are incorporated into this Agreement as though fully restated herein. All action steps may be amended by joint agreement of the parties, provided full compliance is still feasible by the expiration of the Agreement. Action steps that relate to NDE's science assessment that have due dates beyond the expiration of this agreement, and only these particular action steps, are not incorporated herein; failure to complete these particular action steps prior to the expiration of the agreement shall not be relied upon as a basis for finding that NDE has failed to comply with the terms of the compliance agreement. 

By agreeing to the action steps that are incorporated into this Agreement, the Department expresses no opinion on the legal sufficiency of the standards and assessment system that will result from the completion of those action steps. NDE agrees that the Department's approval of its standards and assessment system will be handled through the Department's peer review process and that NDE's successful completion of the action steps incorporated herein does not bind the Department to approve NDE's standards and assessment system. 

In addition to all terms and conditions set forth above, NDE agrees that its continued eligibility to receive Title I, Part A funds is predicated upon its compliance with all statutory and regulatory requirements of that program that are not specifically addressed by this Agreement, including any amendments to the No Child Left Behind Act of 2001 enacted after the effective date of this Agreement. This agreement is predicated upon NDE's compliance from this point forward with Federal and State laws as they now exist or as they may be amended in the future. 

If NDE fails to comply with any of the terms and conditions of this Agreement, including the action steps attached hereto that are incorporated herein as set forth above, the Department may consider the Agreement no longer in effect and may take any action authorized by law, including the withholding of funds or the issuance of a cease and desist order. 20 U.S.C. 1234f(d). 

*It is so agreed*.                         

For the Nebraska Department of Education.

Marge Harouff, 

*Deputy Commissioner*.                        

For the United States Department of Education.

Kerri L. Briggs,

*Assistant Secretary, Office of Elementary and Secondary Education*.                         

Date this Compliance Agreement becomes effective: Oct 8, 2008. 

Expiration Date of this Agreement: Oct 8, 2011. 
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BILLING CODE 4000-01-P 

[FR Doc. E9-1537 Filed 1-23-09; 8:45 am] 

BILLING CODE 4000-01-C