I 

111TH CONGRESS 

1ST SESSION H. R. 2958 

To amend the accountability provisions of part A of title I of the Elementary 

and Secondary Education Act of 1965, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 18, 2009 

Mr. TERRY (for himself, Mr. PLATTS, Mr. PAUL, and Mr. SIMPSON) introduced the following bill; which was referred to the Committee on Education and Labor 

A BILL 

To amend the accountability provisions of part A of title 

I of the Elementary and Secondary Education Act of 

1965, 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 ‘‘State and Local Edu5 cation Flexibility Act of 2009’’. 

6 SEC. 2. AMENDMENTS TO ESEA. 

7 (a) LIMITED ENGLISH PROFICIENT STUDENTS.— 

8 Section 1111(b) of the Elementary and Secondary Edu9 cation Act of 1965 (20 U.S.C. 6311(b)) is amended— 


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1 (1) in paragraph (2)(C)— 

2 (A) in clause (vi), by striking ‘‘and’’ at the 

3 end; 

4 (B) in clause (vii), by striking the period 

5 at the end and inserting ‘‘; and’’; and 

6 (C) by adding at the end the following: 

7 ‘‘(viii) at the State’s discretion on a 

8 case-by-case basis, may not include the 

9 performance of any limited English pro10 ficient student if— 

11 ‘‘(I) the student has not been en12 rolled for 3 full school years in an ele13 mentary school or secondary school in 

14 the State; and 

15 ‘‘(II) the parents of the student, 

16 and the school administrator or team 

17 of educators designated by the stu18 dent’s school for making limited 

19 English proficiency placement and as20 sessment decisions, agree that such an 

21 exclusion is educationally appropriate 

22 for the student.’’; 

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1 cept that the 95 percent requirement described in 

2 this clause’’; 

3 (3) in paragraph (3)(C)— 

4 (A) in clause (xiv), by striking ‘‘and’’ at 

5 the end; 

6 (B) in clause (xv), by striking the period at 

7 the end and inserting ‘‘; and’’; and 

8 (C) by adding at the end the following: 

9 ‘‘(xvi) notwithstanding clause 

10 (ix)(III), at the State’s discretion on a 

11 case-by-case basis, not include any limited 

12 English proficient student if— 

13 ‘‘(I) the student is enrolled in his 

14 or her first full school year in an ele15 mentary school or secondary school in 

16 the State; and 

17 ‘‘(II) the parents of the student, 

18 and the school administrator or team 

19 of educators designated by the stu20 dent’s school for making limited 

21 English proficiency placement and as22 sessment decisions, agree that such an 

23 exclusion is educationally appropriate 

24 for the student.’’; and 


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1 (4) in paragraph (7), by adding at the end the 

2 following: ‘‘Notwithstanding the preceding sentence, 

3 a State plan may provide for the exclusion from 

4 such annual assessment of English proficiency of 

5 any limited English proficient student if (A) the stu6 dent is enrolled in his or her first full school year 

7 in an elementary or secondary school in the State; 

8 and (B) the parents of the student, and the school 

9 administrator or team of educators designated by 

10 the student’s school for making limited English pro11 ficiency placement and assessment decisions, agree 

12 that such an exclusion is educationally appropriate 

13 for the student.’’ 

14 (b) CONSIDERATION OF GRADUATION RATES IN

15 AYP.—Clause (vi) of section 1111(b)(2)(C) of the Ele16 mentary and Secondary Education Act of 1965 (20 U.S.C. 

17 6311(b)(2)(C)) is amended by inserting ‘‘, except that, at 

18 the discretion of the State, such graduation rates may in19 clude (I) any student who has exceptional circumstances 

20 and graduates from secondary school with a regular di21 ploma in not more than 5 years, (II) any qualified child 

22 with a disability (as that term is defined in paragraph 

23 (3)(C)(11)) who graduates from secondary school with a 

24 regular diploma before attaining an age established by 

25 State law, and (III) any qualified child with a disability 


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1 (as that term is defined in paragraph (3)(C)(11)) who sat2 isfies such alternative challenging academic content and 

3 achievement standards as the State may establish for the 

4 child to complete secondary school in a reasonable period 

5 of time’’ after ‘‘in the standard number of years’’. 

6 (c) CHILDREN WITH DISABILITIES.—Subsection (b) 

7 of section 1111 of the Elementary and Secondary Edu8 cation Act of 1965 (20 U.S.C. 6311) is amended— 

9 (1) in subparagraph (B) of paragraph (1), by 

10 striking ‘‘The academic standards’’ and inserting 

11 ‘‘Subject to paragraph (11), the academic stand12 ards’’; 

13 (2) in clause (i) of paragraph (2)(C), by strik14 ing ‘‘applies the same high standards’’ and inserting 

15 ‘‘subject to paragraph (11), applies the same high 

16 standards’’; 

17 (3) in clause (i) of paragraph (3)(C), by strik18 ing ‘‘be the same academic assessments’’ and insert19 ing ‘‘subject to paragraph (11), be the same aca20 demic assessments’’; and 

21 (4) by adding at the end the following: 

22 ‘‘(11) CHILDREN WITH DISABILITIES.— 

23 ‘‘(A) RELATION TO IEP.—Subject to the 

24 requirements of subparagraphs (B) and (C), 

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1 ability, a State plan may provide for modifica2 tion of the challenging academic content stand3 ards and challenging student academic achieve4 ment standards required by paragraph (1)(A), 

5 the high standards of academic achievement de6 scribed in paragraph (2)(C)(i), and the yearly 

7 student academic assessments described in 

8 paragraph (3), to align such standards and as9 sessments with the child’s individualized edu10 cation program. 

11 ‘‘(B) PARENTAL CONSENT.—A State plan 

12 may not provide for modification pursuant to 

13 subparagraph (A) of any standard or assess14 ment unless the parents of the child involved 

15 agree that such modification is educationally 

16 appropriate for the child. 

17 ‘‘(C) PROGRESSIVELY HIGHER LEVEL OF

18 INSTRUCTION.—In the case of a qualified child 

19 with a disability who has a significant cognitive 

20 impairment, but not a severe cognitive impair21 ment, any modification pursuant to subpara22 graph (A) of any standard or assessment appli23 cable to the child shall continue to require a 

24 progressively higher level of instruction each 

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1 ploma or an alternative State-established di2 ploma leading toward graduation with a regular 

3 diploma or an alternative State-established di4 ploma. 

5 ‘‘(D) RULE OF CONSTRUCTION.—This 

6 paragraph shall not be construed to give rise to 

7 any new right under the Individuals with Dis8 abilities Education Act, to expand the definition 

9 of a child with a disability under that Act, or 

10 to otherwise affect any provision of that Act. 

11 ‘‘(E) DEFINITIONS.—In this paragraph: 

12 ‘‘(i) The term ‘individualized edu13 cation program’ has the meaning given to 

14 such term in section 602 of the Individuals 

15 with Disabilities Education Act. 

16 ‘‘(ii) The term ‘qualified child with a 

17 disability’ means a child who receives serv18 ices under the Individuals with Disabilities 

19 Education Act and has been certified by a 

20 licensed health care professional or a mul21 tidisciplinary team (established in accord22 ance with State guidelines and including a 

23 licensed health care professional) as a child 

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1 ment that prevents learning consistent 

2 with the child’s age group.’’. 

3 (d) LOCAL DEVELOPMENT OF ASSESSMENTS.—Para4 graph (3) of section 1111(b) of the Elementary and Sec5 ondary Education Act of 1965 (20 U.S.C. 6311(b)(3)) is 

6 amended by adding at the end the following: 

7 ‘‘(E) LOCAL DEVELOPMENT OF ASSESS8 MENTS.— 

9 ‘‘(i) IN GENERAL.—Notwithstanding 

10 subparagraphs (A) and (C)(i), a State edu11 cational agency may authorize a local edu12 cational agency, or school, in the State to 

13 develop and implement the student aca14 demic assessments required by this para15 graph with respect to the students served 

16 by the local educational agency or school, 

17 respectively. 

18 ‘‘(ii) SAME ASSESSMENT.—Subject to 

19 paragraph (11), any assessment developed 

20 and implemented by a local educational 

21 agency or school pursuant to this subpara22 graph shall be the same academic assess23 ment used to measure the achievement of 

24 all children served by the local educational 

25 agency or school, respectively. 


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1 ‘‘(iii) STATE RESPONSIBILITY.—If a 

2 State educational agency chooses to au3 thorize a local educational agency, or 

4 school, in the State to develop and imple5 ment assessments pursuant to this sub6 paragraph, the State educational agency 

7 shall be responsible for demonstrating in 

8 the State plan that each such assessment 

9 complies with the requirements of this 

10 paragraph.’’. 

11 (e) MULTIPLE ASSESSMENTS.— 

12 (1) IN GENERAL.—Paragraph (3) of section 

13 1111(b) of the Elementary and Secondary Edu14 cation Act of 1965 (20 U.S.C. 6311(b)(3)) (as 

15 amended by subsection (d)) is amended by adding at 

16 the end the following: 

17 ‘‘(F) RULE OF CONSTRUCTION.—Notwith18 standing subparagraph (A), this paragraph 

19 shall not be construed to prohibit the develop20 ment and implementation of the student aca21 demic assessments required by this section 

22 through the use of multiple assessments of high 

23 technical quality integrated into a school’s cur24 riculum and distributed throughout the course 

25 of the school year.’’. 


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1 (2) PARTICIPATION REQUIREMENT.—Clause (ii) 

2 of section 1111(b)(2)(I) (20 U.S.C. 6311(b)(2)(I)) 

3 (as amended by subsection (a)(2)) is amended by in4 serting ‘‘, and shall be a 75 percent annual average 

5 requirement in a case in which the school imple6 ments academic assessments for purposes of para7 graph (3) through the use of multiple assessments 

8 integrated into a school’s curriculum and distributed 

9 throughout the course of the school year’’ before the 

10 close parenthesis at the end. 

11 (f) HIGHLY QUALIFIED SPECIAL EDUCATION AND

12 RURAL TEACHERS.—Section 9101(23)(B)(ii) of the Ele13 mentary and Secondary Education Act of 1965 (20 U.S.C. 

14 7801(23)(B)(ii)) is amended as follows: 

15 (1) By striking ‘‘or’’ at the end of subclause 

16 (I), redesignating subclause (II) as (III) and insert17 ing the following new subclause after subclause (I): 

18 ‘‘(II) at the discretion of the 

19 State, in the case of a special edu20 cation teacher or a teacher in a rural 

21 school, by passing such a rigorous 

22 State academic subject test in any 1 

23 subject in which the teacher teaches 

24 if, with respect to each other academic 

25 subject in which the teacher teaches, 


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1 the teacher works in close consulta2 tion, either in-person or through high3 quality distance education or consulta4 tion, with another teacher who is 

5 highly qualified in such other aca6 demic subject; or’’. 

7 (2) By inserting before the closing parentheses 

8 in clause (i) ‘‘or, at the option of the State, a rig9 orous academic subject matter teaching curriculum 

10 and institutional skill assessments (as determined by 

11 the State’s education commissioner) developed by a 

12 public or private university’’. 

13 (g) SOCIAL STUDIES TREATED AS CORE ACADEMIC

14 SUBJECT.—Paragraph (11) of section 9101 of the Ele15 mentary and Secondary Education Act of 1965 (20 U.S.C. 

16 7801) is amended by striking ‘‘and geography’’ and insert17 ing ‘‘geography, and social studies’’. 

18 (h) COMPETENCE IN SCIENCE AND SOCIAL STUDIES

19 TREATED AS COMPETENCE IN SUBDISCIPLINES.—Para20 graph (23) of section 9101 of the Elementary and Sec21 ondary Education Act of 1965 (20 U.S.C. 7801) is amend22 ed by striking ‘‘and’’ at the end of subparagraph (B), by 

23 striking the period at the end of subparagraph (C) and 

24 inserting ‘‘; and’’, and by adding at the end the following 

25 new subparagraph: 


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1 ‘‘(D) shall be determined under this para2 graph by treating demonstrated competence in 

3 general science or social studies as competence 

4 in the subdisciplines of general science and so5 cial studies, respectively’’. 

6 SEC. 3. STUDY ON THE ADEQUACY OF ESEA FUNDING. 

7 (a) STUDY.—The Comptroller General of the United 

8 States (in this section referred to as the ‘‘Comptroller 

9 General’’) shall conduct a study to determine for each of 

10 school years 2001–2002, 2002–2003, 2003–2004, 2004– 

11 2005, 2005–2006, 2006–2007, and 2007–2008 the fol12 lowing: 

13 (1) The amount of costs incurred by local edu14 cational agencies and schools as a result of efforts 

15 to comply with the provisions of part A of title I of 

16 the Elementary and Secondary Education Act of 

17 1965 (20 U.S.C. 6301 et seq.). 

18 (2) The amount of funds received by local edu19 cational agencies and schools under such part A. 

20 (b) REGULAR EDUCATIONAL EXPENSES.—In making 

21 a determination of costs under subsection (a)(1), the 

22 Comptroller General shall exclude educational costs that 

23 would be incurred by local educational agencies and 

24 schools irrespective of efforts to comply with the provisions 


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1 of part A of title I of the Elementary and Secondary Edu2 cation Act of 1965 (20 U.S.C. 6301 et seq.). 

3 (c) SAMPLES.—The Comptroller General shall make 

4 sample determinations under paragraphs (1) and (2) of 

5 subsection (a) for— 

6 (1) at least 1 local educational agency and 1 

7 school in a rural area in each State; and 

8 (2) at least 1 local educational agency and 1 

9 school in an urban area in each State. 

10 (d) REPORT.—Not later than 1 year after the date 

11 of the enactment of this Act, the Comptroller General shall 

12 submit a report to the Congress on the results of the study 

13 conducted under this section. 

14 (e) SUBSEQUENT STUDY AND REPORTS.—The 

15 Comptroller General shall conduct a study, for each school 

16 year after the 2005–2006 school year, to determine the 

17 costs and funds described in subsection (a) for such year. 

18 The report of each such study shall be submitted to the 

19 Congress not later than 1 year after the close of the school 

20 year to which the study relates. 

21 SEC. 4. MEASURING INDIVIDUAL STUDENT ACADEMIC 

22 ACHIEVEMENT. 

23 The Elementary and Secondary Education Act of 

24 1965 is amended by adding the following at the end of 


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1 subpart 4 of part A of title VI and by making the nec2 essary conforming changes in the table of contents: 

3 ‘‘SEC. 6165. MEASURING INDIVIDUAL STUDENT ACADEMIC 

4 ACHIEVEMENT. 

5 ‘‘A State may choose to demonstrate adequate yearly 

6 progress under this subpart by utilizing individual growth 

7 models to measure individual student progress from grade 

8 to grade if the State meets all of the following require9 ments: 

10 ‘‘(1) The State system contains strong privacy 

11 protections and measures to prevent the labeling of 

12 students. 

13 ‘‘(2) The State system includes measures to 

14 meet the academic progress benchmarks established 

15 under NCLB to reach the universal goal of 100 per16 cent student proficiency by 2014. 

17 ‘‘(3) The State system includes both annual or 

18 multiple yearly assessments of high technical quality 

19 and academic merit as primary measurements of 

20 student academic progress. 

21 ‘‘(4) The State data system meets minimum 

22 standards, which will be established by the Secretary 

23 to ensure high data quality, including the ability to 

24 match test records of individual students from year 


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1 to year and the ability to measure growth at the 

2 classroom and school level. 

3 ‘‘(5) In the case of a student who is one or 

4 more full grade levels behind his or her classmates, 

5 as determined by the State in accordance with the 

6 State’s grade-level academic standards, the State 

7 has a plan in place to bring the student up to age8 appropriate grade level learning within three years 

9 through targeted interventions chosen by the State, 

10 and the plan has been approved at the start of each 

11 of the three applicable school years by one or both 

12 of the student’s parents. 

13 ‘‘(6) The State system recognizes individual 

14 student GPA as a factor in reporting student 

15 progress. 

16 States utilizing individual growth models may, in the case 

17 of a student who is determined by the State to be one 

18 or more full grade levels behind his or her classmates, 

19 count the student as meeting adequate yearly progress re20 quirements for up to three years as long as the student 

21 is meeting the annual State-established goals for indi22 vidual student progress that are designed to bring the stu23 dent up to age-appropriate grade level learning within 

24 three years through appropriate targeted interventions. 


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1 ‘‘SEC. 6166. ACCURATE IDENTIFICATION OF SCHOOLS 

2 NEEDING IMPROVEMENT. 

3 ‘‘(a) IN GENERAL.—For purposes of determining 

4 adequate yearly progress under this subpart, schools shall 

5 be graded on the following grading scale: 

6 ‘‘(1) Grade A+: Schools achieving 100 percent 

7 of the factors that make up adequate yearly 

8 progress. 

9 ‘‘(2) Grade A: Schools achieving 90–99 percent 

10 of such factors. 

11 ‘‘(3) Grade B: Schools achieving 80–89 percent 

12 of such factors. 

13 ‘‘(4) Grade C: Schools achieving 70–79 percent 

14 of such factors. 

15 ‘‘(5) Grade D: Schools achieving only 60–69 

16 percent of such factors. 

17 ‘‘(6) Grade F: Schools achieving 59 percent or 

18 less of such factors. 

19 ‘‘(b) AWARDS AND SCHOOL IMPROVEMENT MEAS20 URES.—The following awards and school improvement 

21 measures shall apply to schools based on the grade each 

22 school receives on the above school improvement grading 

23 scale: 

24 ‘‘(1) A+ schools shall receive greater flexibility 

25 in the use of title I funds provided to their school 


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1 with the transferability percentage increased from 

2 50 percent to 75 percent flexibility. 

3 ‘‘(2) A schools shall have flexibility to utilize 

4 Federal funds to help boost achievement for specific 

5 sub-groups not making adequate yearly progress in6 cluding for additional teacher development and any 

7 other interventions the school deems appropriate. 

8 ‘‘(3) B SCHOOLS.—After two years of not mak9 ing AYP, the district shall choose the interventions 

10 from those allowed under section 1116 of the Ele11 mentary and Secondary Education Act of 1965 (20 

12 U.S.C. 6316) that are appropriate to help the school 

13 improve its performance as quickly and effectively as 

14 possible. 

15 ‘‘(4) C SCHOOLS.—After two years of not mak16 ing AYP, the district in consultation with the State 

17 shall choose the appropriate interventions from those 

18 allowed section 1116 of the Elementary and Sec19 ondary Education Act of 1965 (20 U.S.C. 6316) to 

20 help the school improve its performance as quickly 

21 and effectively as possible. 

22 ‘‘(5) D SCHOOLS.—After two years of not mak23 ing AYP, the district and State shall choose the ap24 propriate interventions from those allowed under 

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1 cation Act of 1965 (20 U.S.C. 6316) to help the 

2 school improve its performance as quickly and effec3 tively as possible. 

4 ‘‘(6) F SCHOOLS.—After two years of not mak5 ing AYP, the State shall choose the appropriate 

6 interventions from those allowed under section 1116 

7 of the Elementary and Secondary Education Act of 

8 1965 (20 U.S.C. 6316) to help the school improve 

9 its performance as quickly and effectively as pos10 sible. 

11 ‘‘(c) SCHOOLS MAKING AYP.—In the case of schools 

12 graded B, C, D, or F, States and school districts, coordi13 nating as appropriately required for each grade level in 

14 this section, may choose to implement any, all, or none 

15 of the school improvement measures currently available 

16 under section 1116 of the Elementary and Secondary 

17 Education Act of 1965 (20 U.S.C. 6316) for schools not 

18 making AYP for 3–5 years without the school being identi19 fied ‘‘in need of improvement’’ or as needing corrective 

20 action. 

21 ‘‘(d) SCHOOLS NOT MAKING AYP.—In the case of 

22 schools graded B, C, D, or F which fail to progress beyond 

23 their initial grade level for three consecutive years, such 

24 schools shall be subject to the current school improvement 

25 measures that apply to schools that have not made AYP 


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1 for three years as defined in the State’s plan under section 

2 1111(b)(2).’’. 

3 SEC. 5. COMPARISON OF STATEWIDE REPORT CARDS. 

4 Section 1111(h)(6) of the Elementary and Secondary 

5 Education Act of 1965 (20 U.S.C. 6311(h)(6)) is amend6 ed— 

7 (1) by redesignating subparagraph (C) as sub8 paragraph (D); and 

9 (2) by inserting after subparagraph (B) the fol10 lowing: 

11 ‘‘(C) ADDITIONAL INFORMATION.—In ad12 dition to the information that parents may re13 quest under subparagraph (A), a school that re14 ceives funds under this part shall provide, to 

15 each individual parent, student progress report 

16 cards referred to in this subsection in addition 

17 to report cards showing the schoolwide and 

18 statewide progress of students as required by 

19 this subsection. States shall include on the stu20 dent progress report cards the grade of the 

21 school the individual student attends, as identi22 fied from the school improvement grading scale 

23 in section 6166. States shall also include on 

24 schoolwide and statewide progress report cards 

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1 ment of Educational Progress (NAEP) in the 

2 academic subject areas required to be reported. 

3 An explicit side-by-side comparison is not re4 quired and each State may choose the format in 

5 which information is presented if the NAEP 

6 scores are included.’’. 

Æ 


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