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NCLB Reauthorization and New Title I RulesKeynote

MASFPSNovember, 2008

Leigh ManasevitBrustein & Manasevit3105 South Street NW Washington, DC 20007(202) 965- 3652www.bruman.comlmanasevit@bruman.com

12110th Congress: Second Session: ESEA Reauthorization

22ESEA BackgroundPresident Johnsons legacy: The War on Poverty, announced on January 8, 1964. Original Elementary and Secondary Education Act (ESEA) was signed into law by President Johnson in 1965,ESEA in 1965 = 32 pages NCLB of 2001 = 670 pages. 3ESEA Background2001 was a revolutionary change (Section 1111) Standards, Assessments and AYP; (Section 1116) School Improvement, choice, SES, corrective action and alternative governance;Highly Qualified Teachers Law designed to deliver funding for a small program became a vehicle for system-wide mandated changes in education. 4

ESEA Background2001 saw unique political alliances: Republican leadership in Congress set aside concerns for an expanded federal role in education to support Presidents Bush soon after 9/11; Democratic leadership set aside concerns over testing and accountability to follow the leadership of Senator Kennedy (D-MA) and Representative George Miller (D-CA); That unique moment in time has passed. 5

The American people have a very strong sense that NCLB is not fair. That it is not flexible. And that it is not funded. And they are not wrong.--George Miller (D-CA), one of the original architects of NCLB, in a July 2007 speech on NCLB reauthorization

6I talk about No Child Left Behind like Ivory Soap: Its 99.9 percent pure or something. Theres not much needed in the way of change.

--Hon. Margaret M. Spellings, Press Conference August, 2006

7I think it can be improved.

--Hon. Margaret M. Spellings, July, 2007 to National Association of Elementary School Principals and National Association of Secondary School Principals8I had these second thoughts in the back of my mind the whole time. I believe it was a necessary step at the time, but now that it has been in place for a while, its important to step back and see if there are other ways to solve the problem.--Eugene Hickok, former USDE Deputy Secretary, concerning the expanded role of the federal government under NCLB, in a June, 2007 interview.

9CongressHouse education committees 435-page discussion draft

10102001: Passed with bipartisan support, but compromisesRep = concede to larger fed govtDem = private tutoring2007: Political parties going back to rootsCons Rep = shrink fed role (A PLUS); balance budgetDems= more $$ necessaryAssessment and Accountabilityand you thought NCLB was complicated . . .

Involved an entire reorganization of assessment and consequences

Removed From Committee Website

11We could easily lose simple transparency about whether schools are teaching students to read and do math on grade level, and obscure whats actually going on in schools.--Hon. Margaret Spellings, US Secretary of Education, reacting to a lack of transparency in the Miller-McKeon NCLB reauthorization proposal, September, 2007

12Predictions on Timing??13

13Factors Influencing ReauthorizationFreshmen DemocratsConservative RepublicansSenate billUpcoming Presidential electionNew Congress

14Presidential ElectionNovember, 200815Sen. Barack Obama(Democratic Platform)18 B. plan Support for Teachers Who Take on New Responsibility Merit Pay - ConsultationGrowth ModelsBetter Assessments Move from Standardized TestsSilent on National StandardsPromote Charters with More $ and More Accountability16Sen. John McCainNo National StandardsExpanded Transfer Options, Including Private and Virtual SchoolsGrowth ModelsMore Rigorous AccountabilityTeacher Performance PayPlatform Block Grants17Proposed Final Regulations and Department of Education Pilot Programs

Choice, SES, Corrective Action, and Restructuring1818Accountability GuidanceLEA and School ImprovementRevised July 21, 2006 (replaces Jan 7, 2004)www.ed.gov/policy/elsec/guid/ schoolimprovementguid.pdf

19Accountability GuidanceChoiceFebruary 6, 2004 (draft)www.ed.gov/policy/elsec/guid/ schoolchoiceguid.pdf Supplemental Educational ServicesJune 2005www.ed.gov/policy/elsec/guid/ suppsvcsguid.pdf20PROPOSED FINAL REGULATIONS!http://www.ed.gov/legislation/FedRegister/other/2008-2/042308a.html Announced in Federal Register April 23, 2008Comments submitted by June 23, 2008Secretary Spellings underwhelmed by commentsFinal October 27, 200821School ImprovementYears of failing AYP**Status123School Improvement (Year 1) (school choice)4School Improvement (Year 2) (choice and SES)5Corrective Action (Year 3)6Restructuring Planning year (Year 4)7Restructuring Implementation (Year 5)8+?22SI YEAR 1:School Choice23 Public School ChoiceAnother public school in LEA not identified for school improvement and not persistently dangerous

24Notice and TimingNot later than first day of school year following assessments

If not, LEA make choice available as quickly as possible In no case wait until next school year Immediately or second semester

PR Final: At least 14 calendar days before start of school year

252525Plan early offer choice immediately to school previously identified that did not make 1 year AYP.SI YEAR 2:Supplemental Educational Services26

Supplemental Educational Services (SES)Eligible enrolled students receive tutoring or other extra educational services from an SEA-approved and parent-selected provider

27Timing IssuesAt beginning of SY following assessments

May establish deadline for parentsGive sufficient time (not 2 weeks)

28PR Final: SES Notice Must:Include explanation of benefits of SESBe clear and conciseBe clearly distinguishable from other information sent to parents on school improvement Need not be separate29PR final: More info to parents:LEA must prominently display on website:For the 2007-08 year and beyond, the number of students:eligible for choiceparticipating in choiceEligible for SESParticipating in SES30PR FINAL: More info to parents:For current SY, list of SES providers approved by SEA and location of servicesAbility to serve LEP and SWDs

For current SY, list schools eligible to receive students through choice

31Who is eligible?Low income student

Among eligible, prioritize lowest achieving Academic measure

Do not assume limited resources before notifying parents Notify all eligible familiesOnly after getting parent response, consider priority

32Who may be a provider?Any for-profit or nonprofit entities (including religiously-affiliated) meeting state criteria

LEANot ID for improvement (unless waived)

Individual (if non-profit or for-profit corp)

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34Distance learning providers

FBOs not required to give up religious characterNeed not remove religious iconsCannot discriminate against recipients

What are State responsibilities?Send annual notice to potential providersDevelop listEstablish criteriaRecord of effectivenessFiscally soundCannot require highly qualified staffMonitor!!

35PR FINAL: SEA approval process:Entity must give evidence that instruction aligned with standards.Consider whether entity removed from other states provider listsParent recommendations or survey resultsEvaluate whether instructional program has improved student achievement36State Monitoring of ProvidersEnsure, through approval and monitoring, high-quality services deliveredDevelop and implement standards and techniquesPublicly report stands, tech., & findingsIf no improvement after 2 yrs, remove37PR FINAL: SEAs monitoring Providers:Review evidence that instructional program was:Consistent with instruction provided by LEA and SEAAddresses students individual needsContributed to increasing proficiencyAligned with state standardsParent recommendations, surveys

38State Monitoring of LEAsShould be part of regular Title I monitoringAlso, consider other tools to monitor throughout yearLEA submit to SEA:parental notification lettersUpdates during year on # of eligible students, # signed up, # attending, amount of $ spent

39LEAs CANNOT:Establish own provider listSet program design criteriaONLY administrative or operational rules that are imposed on all contractorsBackground checks, liability insuranceBut see Philadelphia Rule80 % hours for 90% students by SpringED OK

40Funds for Choice Transportation and SESAmount equal to 20% of LEA allocation (unless lesser amount needed)To pay choice transportationTo satisfy all requests for SES servicesBoth

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If no SES, then 20% on choice

If no choice, then 20% on SES

If both, then minimum of 5% for choice, 5% for supp services, and 10% for either

42Choice:TransportationCosting MethodologyCalculate cost per mileTotal Transportation Costs Pupil Miles TransportedCalculate Additional Pupil Miles Transported for Choice YX times Y Cost of Choice Transportation

43XAdmin/ SES Transportation20% cannot include administration (for choice or SES) or SES transportation

Allowable Title I, but not in 20%

44PR FINAL: Parent OutreachAllow limited amount of funds for parent outreach to count toward 20%Capped at 0.2% of LEA Part A grantMay spend more for outreach, but only 0.2% counts toward 20%EX $1 million LEA grant;20% = $200,0000.2% = $2,000 can count toward $200,00045If use Title I Funds, from where?

46Off the top of LEA allocationFrom individual school allocationsBoth

BUT. . . For schools in corrective action and restructuring, cannot reduce Title I allocation by more than 15%.47Two methods:Prior Year: Set floor at 85% of prior yearCurrent Year, Run Twice:Pre-20% reservation run (before 20% but after other reservations)For CA and restructured schools, calculate 85% of pre-reservation amount

48Doesnt it violate the ranking and serving rules?Creates an exception49Use 20% unless a lesser amount is needed

How do you know if less is needed?50

Considerations in determining if LEA adequately met demandAppropriately notified all eligible parentsAdequately publicized options in understandable formats and multiple forumsOffered parents reasonable period of time to investigate and submit requests51If full 20% not needed (reserved more than necessary)Reallocate to Title I

If took school allocations, then reallocated to those schools

Subject to equitable participation of private school students52What if LEA spends less than 20%, but full amount was needed?Out of compliance and subject to enforcement sanctions

Re-open enrollment for SES and choice

If re-opening impossible, then carry over unexpended balance of set-aside and use for choice/ SES in second year53PR FINAL: When to reallocate 20%Before reallocating 20%, LEA must demonstrate document: (SEA notice not approval)Partnering w/ CBO if practicableTimely, accurate notice to parentsSES sign-up forms given directly to all eligible students/ parentsAllow sign up throughout school year Minimum 2 enrollment periodsSES providers given access to school facilities on same basis as others54

SES GuidanceAugust 20, 2008Dear Chiefs LetterAssistant Deputy SecretaryDoug Mesecar55SES GuidanceThe Department issues this guidanceThis guidance concernsThis guidance represents

56SES GuidanceFinal responsibility to develop and to assure agreement LEA Contains required elementsReasonable efforts to consult with parents onSES Services LEA must demonstrate (document) effortsSEAs encouraged to develop a definition of reasonable effortsComputers and IncentivesProvider using technology may provide computersSEA may allow students to retain computers where primary purpose is instructionalSEAs to monitor SES providers as to primary purpose57Pilot Program to Flip Order of SES and Choice1st YearSY 2005-06: 4 VA LEAs

SY 2008-09: No limit on districts within an approved state 58State Approval For Flip ProgramApproved Assessments Timely AYP NoticeState Evaluation of SES Providers59Approved StatesAlabama Alaska Arkansas North Carolina

Tennessee Utah Virginia60SES EffectivenessCenter on Education PolicyNon-Partisan Education Think TankStudies Have Not Shown Any Benefit!61SI YEAR 3:Corrective Action62

Continue:School choiceSupplemental Educational ServicesTechnical assistance (from LEA or other provider)63Impose corrective action

Replace school staff relevant to failureNew curriculumGrounded in scientifically based research, with professional developmentSignificantly decrease management authority at school64After 4 years no AYP, LEA must choose one:Appoint outside expert To advise on: a) how to revise and strengthen plan, and b) how to address the specific issues underlying failure to make AYPExtend school day or yearRestructure internal organization, ORProvide appropriate professional development (guidance only)

65Is a school in CA required to use 10% for professional development?NO. The requirement to use 10% of Title I for PD only applies to schools in Years 1 and 2 of school improvement.

66SI 4 YEAR:Plan for Restructuring (Year 1)67

SI YEAR 5:Implementation of Restructuring Plan68TimingIf school fails AYP during planning year (05-06),

then implement plan no later than the beginning of the following school year (06-07)

69Continue:School choice

Supplemental Educational Services

3. Technical assistance from LEA?Not required by statuteBut strongly encouraged by USDE70What is Restructuring?Intensive and far-reaching interventions to revamp completely the operation and governance of schoolFundamental reform With substantial promise to improve achievement Consistent with state law71Restructuring

Reopen as charterReplace all or most school staff relevant to failureContract with private managementState take overAny other major restructuring72After 5 years no AYP, LEA must develop plan that involves at least one:What constitutes any other major restructuring?Flexibility to best meet needs of school

EX:Significant change in governance structure (diminishes school-based management) (increases control and monitoring by LEA)

Reopen school as a focus or theme school with new staff (math & science; dual language; communication arts)73Reconstitute into smaller autonomous learning communities (school-within-a-school; learning academies)Dissolve school and assign students to other schools in LEAPair school with higher performing school Expand or narrow the grades served (from K-8 to K-5 school)74PR FINAL: Interventions must:Be significantly more rigorous and comprehensive than under CA EXCEPTION where CA was a restructuring planAddress the reasons for schools identificationRe replacement of staff: not sufficient to only replace principal MUST BE PART OF LARGER PLAN

75Can the restructured school be a new school in terms of accountability system?Yes, if dictated under state law.State determines when legitimately and legally new schoolIf significantly reconfigured (i.e., different students and different grades), and meets states definition of new, then may start over on the school improvement timeline76SEA must:Have definition of what constitutes a new school

Have adopted operational rules for how to make AYP determinations for new schools

Amend its accountability plan 77What restructuring appropriate if school ID based solely on performance of one subgroup or insufficient participation?No exceptions!Improved achievement is everybodys business in the schoolRegardless of reason for failing AYP, choice and SES must be given to all the schools eligible students.78What is impact of collective bargaining agreements?Statute: Section 1116(d): Nothing shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded school district employees under Federal, State, or local laws or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements.79YET, an LEA that accepts Title I funds must comply with all statutory requirements, notwithstanding any terms and conditions of its collective bargaining agreements.80ResolutionUSDE Interpretation:Any changes to state or local law, collective bargaining agreements, or any new agreements must be consistent with Title I statute.

Responsibility of SEA, LEA, state legislatures, and local governing boards

81What are SEA monitoring responsibilities?Guidance: SEAs required to monitor restructured schoolsmost critical elements of Title I program will be monitored

Statute does not require LEA submit restructuring plans or reports to SEA, but SEA may require this.82State monitoringIf LEA does not impose restructuring, then SEA must take appropriate action, such as:Assign a state support team to schoolCollect and review plans and progress reportsWithhold funds83Center for Education PolicyA Call to Restructure RestructuringStudy of Restructuring

84 California Georgia Maryland

Michigan OhioCenter for Education PolicyFindings:

7% (3,500) schools nationally in planning or restructuringIn study, most in urban areas many for over 4 yearsAny other most popular choiceReplacing staff unintended adverse consequencesUnable to replaceToo much effort in replacement

85Center for Education Policy (cont.)Recommendations:Expand federal optionsStep up state monitoringAddress endless restructuring status

86Proposed FINAL Regulations :Multiple MeasuresClarification: assessment results need not be based on single assessment assessmentsAssessments Include:Higher order skills measuresRecall, breadth, depthSingle or multiple tests

PR FINAL: Clarifies does not change existing rule

87Proposed FINAL Regulation:Minimum Subgroup SizeStates must:Ensure, to maximum extent practicable, that all subgroups representedRevise accountability workbooksInclude explanation of how n numbers were derivedSubmit workbook no less than 6 months after requested in time for 2010-2011 AYP determinationsTechnical assessment and peer review88Proposed FINAL Regulation: NAEPSEA LEA Report Cards Must Include NAEP Scores

Disaggregated (State Only) Participation RatesLEPSWD89Proposed FINAL Regulation: Graduation RatesAdopts NGA Definition Similar to NGA(Agreed to by All Governors in 2005)

Number Graduating in Standard YearsAdjusted Cohort

Must set goal and by 2009-2010 Assessments and Interim Increases

90Proposed Regulation:Graduation RateAdjusted Cohort

91Cohort Removal Written DocumentationProposed FINAL Regulation: Graduation RateStandard Number of Years- States may propose exceptions to 4 years Separate extended year note

Must Be in Place by 2010-2011 for ReportingMust Be In Place by 2011- 2012 (End) for AYPDoes Not Include GED (NGA more inclusive)

May Request Extension

92Proposed FINAL Regulation: Growth ModelOriginally a Pilot Now PR Final RegulationUses Waiver Authority Now 11 States

93AlaskaArizonaArkansasDelawareFloridaIowa

MichiganMissouriNorth CarolinaOhioTennesseeProposed FINAL Regulation: Identification for AYP: Schools and LEAsCodifies Current Policy:

OK ID ONLY IF 2 YEARS FAIL SAME SUBJECT

NOT OK ID ONLY IF 2 YEARS FAIL SAME SUBGROUP 94Differentiated Accountability Pilot Program

New Flexibility Announced95Differentiated Accountability Pilot ProgramCreating a more nuanced system of interventionsDistinguishing schools on fire vs. smolderingGet information to prepare for NCLB reauthorization96What states are eligible?Standards and assessments fully approvedNo significant monitoring findingsApproved HQT Plan97What states are eligible?Timely and transparent AYP info to publicPriority: States with high percentage of Title I schools ID for improvement98Questions???99This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit does not create an attorney-client relationship with Brustein & Manasevit. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.

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