TO: AASA and ASBO International Members

TO: AASA and ASBO International Members FROM: AASA and ASBO Advocacy DATE: June 2012 RE: Every Student Succeeds Act (ESSA) Proposed Accountability Regulations

BACKGROUND: As is the case with any federal statute, the agency that oversees implementation of the statute is responsible for providing any regulations, guidance and/or technical assistance that may be necessary to better support successful implementation of the law. For the Every Student Succeeds Act, the US Education Department (USED) will issue the support documents. This memo is a summary of USED’s proposed regulations as they related to accountability.

The Every Student Succeeds Act (ESSA) represents a significant improvement over the No Child Left Behind Act (NCLB), which was the most recent authorization of the original underlying statute, the Elementary and Secondary Education Act (ESEA). ESSA takes the pendulum of federal overreach and prescription rampant in NCLB and swings it firmly back to state and local control. ESSA is clear to maintain that there is a role for the federal government in K12 education; importantly, though, ESSA clarifies that the role of the federal government is to support and strengthen our nation’s schools, not prescribe and dictate to them.

In voting ESSA into law, Congress was very clear and deliberate to ensure that state and local education agencies— not the federal government—are in the driver’s seat when it comes to making day to day decisions that impact both the implementation and success of education programs and offerings. The spirit and intent of ESSA are clear and consistent, and Congress was just as deliberate in defining the terms and concepts for which it included definitions and prescriptions as it was in providing flexibility for the terms and concept it structured more vaguely. Consistent with the framing principles of state and local control, in those instances where a term or concept is not defined and may need clarification, the federal government should proceed with restraint, issuing regulations and guidance in those areas where state and local education agencies agree federal clarification is helpful.

While AASA urges USED to issue regulations in a restricted manner, AASA strongly believes that USED is uniquely positioned to play a critical role in supporting state and local implementation of ESSA through non-binding guidance and technical assistance. The sheer volume of new practices, programs and approaches that state and local education agencies will be considering and adopting—coupled with the significant call for evidence-based approaches—means that state and local education agencies will have great demand for information. USED should provide both a list of the programs and practices that should be considered (and how to implement them) as well as the research and data that can help a district understand the program’s effectiveness and if it matches the community need. USED is best positioned to manage this clearing-house, and collect and organize best practices, programs and related research. We look forward to working with USED should it move forward to support state and local education agencies in this vital role.

USED is issuing three sets of regulations related to ESSA: one on assessments (pending), one on supplement/not supplant (forthcoming), and one on accountability provisions (featured in this memo). The proposed regulations were issued in late May, and the comment period is open through August 1. Pending review of stakeholder feedback, the final regulation will be available in late 2016 to further inform state and local planning.

This summary is structured in a section-by-section format to support reference to the proposed regulations. The summary highlights key takeaways and is followed by a listing of the specific aspects of the proposals that have caught AASA’s eye or give us concern. Section by Section Summary

200.12: Single statewide accountability system  State will develop and implement a single statewide accountability system by the start of the 2017-18 school year 200.13: Long-term goals and measurements of interim progress  Long-term and interim goals will be developed around academic achievement, graduation rates, English language proficiency o Clarifies that if a state chooses to use an extended year graduation rate, the state must set a more rigorous long-term goal for the extended rate compared to the long-term goal of the four-year rate o Clarifies that in determining English learner proficiency, the State may consider the following student characteristics: time in language instruction educational programs; grade level; age; native language proficiency level or limited/interrupted formal education 200.14: Accountability indicators 200.15: Participation in assessments and annual measurement of achievement  Clarifies that each state must annually measure the achievement of at least 95 percent of all students (and 95 percent of all students in each subgroups of students)  In doing so, for each entity missing the requirement for all students or for any subgroup of students in a school results in at least one of the following actions: o Lower summative rating in the state’s system of differentiation o Lowest performance level on the academic indicator of the state’s system of differentiation o Identification and implementation of a targeted support/improvement plan or o Another state-determined action that results in similar outcome 200.16: Subgroups of students  Maintains current disaggregation requirements: economically disadvantaged, students from major racial and ethnic groups, children with disabilities and English learners  No super subgroups  Subgroup must include former EL students for four years. No requirement to differentiate between current and former EL students for the academic achievement indicator, but former ELs cannot be included for any other academic or non-academic accountability indicators.  Report annually on the number and percentage of recently arrived English learners.  States can count the scores of students who were previously identified as a child with a disability for the purposes of making accountability determinations for up to two years. 200.17: Disaggregation of data  Clarifies that states get to set the n-size (minimum number of students from a particular group to count for accountability purposes) unless the state wants to go above 30, in which case the state will need to provide a justification for the larger n-size. o If a district may not report on EL students due to low “n” size, former EL students must be counted as ELs for “n” size determinations. 200.18: Annual meaningful differentiation of school performance  In creating meaningful differentiation, state plans must include (for each indicator) at least three distinct level of school performance.  The plan must include one single (summative) rating from at least three distinct rating categories for each school.  The regulations do NOT define ‘much more than’ as it relates to the weighting of non-academic and academic factors. The academic factors must weigh more than the non-academic factors; math and ELA have to be weighted equally.  When it comes to moving a school identified as needing improvement off the list, performance on a school quality/student success factor alone will not be enough to change the identity of the school unless the school is also making significant progress on at least one of the academic factors (academic achievement indicator, academic progress indicator, and/or graduation rate).  Clarifies that a school performing in the lowest performance level of any of the indicators must receive a different summative rating than a school performing in the highest performance level on all indicators 200.19: Identification of schools  The regulations partially define the phrase ‘consistently underperforming’ by requiring that a school’s performance be evaluated over a time period that does not exceed two years.  States must make these identifications (both comprehensive support/improvement and targeted) once every three years  In 2017-2018, States would identify schools needing “comprehensive support” based on their performance data from the 2016-2017 school year. 200.20: Data procedures for annual meaningful differentiation and identification of schools  Clarifies that in meeting the requirements for annual meaningful differentiation, a state may average data across school years (for up to 3 years) and/or combine data across grades 200.21: Comprehensive supports and improvement  Clarifies that once a state identifies LEAs/schools that they are identified for comprehensive support/improvement, it is the LEA that develop and implement the support plan, and the LEA may have one year of planning (to conduct the needs assessment)  Clarifies that the state plan can allow for differentiated improvement activities in high schools with special populations, including those predominantly serving students returning to education having previously left without a regular high school diploma; students (based on age/grade) who are significantly off track to meet high school graduation requirements; or schools with a total enrollment of less than 100 students. 200.22: Targeted support and improvement  Clarifies that these plans are developed at the school level.  Schools identified for support/improvement because of a consistently underperforming subgroup does not have the flexibility to take a planning year before implementing interventions. 200.23: State responsibilities to support continued improvement  Clarifies the responsibilities of the state related to its support of schools under improvement, including inequities in allocations between the LEAs and schools 200.24: Resources to support continued improvement  Clarifies what an LEA applying for improvement funds must include in its application to the state, as well as how the state awards/allocates the funds and that the state may set-aside up to 5 percent of the Sec 1003 allocation for state activities 200.30: Annual state report card  Clarifies the content, format, accessibility and dissemination of state report cards 200.31: Annual LEA report card  Clarifies the content, format, accessibility and dissemination of LEA report cards 200.32: Description and results of a state’s accountability system  Related to 200.30, this section clarifies the information about the state accountability system (including, but not limited to, n-size, indicators, meaningful differentiation, how the state will handle the 95% participation threshold, etc…) that must be included on the state report card and that the state and local report cards must list each LEA and school identified for improvement and why 200.33: Calculations for reporting on student achievement and progress toward meeting long-term goals  Clarifies how state and LEA report cards calculate and report student achievement results 200.34: High school graduation rates  Clarifies the process for calculating the four-year graduation rate, consistent with the 2008 regulations. 200.35: Per-pupil expenditures  Clarifies that the state report card must report current expenditures for each LEA and each school in the state in the aggregate and disaggregated by federal and state/local funds, that each LEA report card must include the same data, and that the state must establish one common approach for calculating the average per-pupil expenditure at the LEA and school level 200.36: Post-secondary enrollment  Clarifies what state and LEA report cards must include related to post-secondary enrollment, which is defined as students who enroll in post secondary education the academic year immediately following high school graduation 200.37: Educator qualifications  Clarifies that each state and LEA report card must include information related to the professional qualifications of educators, both in the aggregate for the LEA and disaggregated by high-poverty and low- poverty schools

Section 299 State Plans: This section is a good overview of the broad information the state must include in its plan, and all of these discussions are subject to stakeholder input.  299.13 Details what a state must include in its plan if it wants to receive Title I grant funds. This is the section that includes the troubling proposal related to fiscal responsibility for transporting students in foster care. See the AASA Response section, below. SEAs must submit assurances by March 6, 2017. This section also lists the titles that can be included in a state consolidated plan (Title I, parts A, C, and D; Title II A; Title IIIA, Title VIA and IV B; Title VB; as well as the State Assessments/Related Activities (Title IB, Sec 1201) and McKinney- Vento Homeless Education Program (Title VII-B)).  299.14 Clarifies the five elements and their components that states must include in their consolidated grant application  299.15 Clarifies the various stakeholder groups the state must work with in designing its consolidated plan as well as how this plan coordinates with other education programs (both within and outside of ESSA)  299.16 Clarifies the information the state must include in its plan related to the state’s standards and the state’s assessments, including its annual assessments, those under the exception for advanced 8th grade mathematics assessment, alternate assessments, and English learner assessments  299.17 Clarifies the information a state must include in its plan related to accountability (i.e. what measures and indicators are being used; subgroup information; n-size; levels of differentiation; and more); its process for identifying schools in need of improvement/support; and its process for supporting the improvement efforts  299.18 Clarifies the information the state must include in its plan related to educator development/advancement/retention and how it will support the professional development and skill growth of educators and educator leaders. This section also includes the information a state must collect and report related to teacher equity, including whether low-income and minority students are taught at disproportionate rates by ineffective, out-of-field, or inexperienced teachers  299.19 Clarifies the information the state must include in its plan related to supporting well-rounded education for all students, including the full preK-12 spectrum and related transitions; equitable access to diverse academic course offerings beyond just math and ELA; and school conditions for student learning

AASA Response: AASA was concerned that the department’s proposed regulations would be inconsistent with the spirit/intent of ESSA and anticipated that the department would propose a high level of prescription that would unnecessarily ties the hands of state and local education agencies before they had the chance to truly engage in the work of ESSA. Upon initial review of the regulations, they are not as bad as they could have been. USED definitely could have proposed more definitions and/or more prescriptive definitions, as well as ramped up the specifications related to school support and improvement as well as data collection and reporting. That said, ‘not as bad as they could have been’ does not necessarily make them good. As such, the following section highlights the various areas of the proposal that AASA will be addressing most prominently in our response to the proposed regulations.

 N-Size: USED proposes to leave the n-size determination up to the state, unless the state wants to go above 30, in which case the state will have to justify a larger n-size. AASA applauds USED for preserving the intended state flexibility around this provision, and is opposed to any regulation that would further lower the n-size cap.  95 Percent Participation: ESSA maintains the requirement that 95 percent of students take the tests. USED’s proposed regulations leave it up to the states to determine how to respond to/cope with schools that do not reach the threshold, and require states to take serious action, but stop short of federal prescription about what that action/consequence might be. AASA is opposed to any further prescription on this topic.  Consistently Underperforming: ESSA does not provide a federal definition for the term ‘consistently underperforming’. In its regulations, USED proposes that as a state works to identify those schools with subgroups that are consistently underperforming, that those determinations be made over a timeframe that does not exceed two years. AASA is opposed to this proposal as it is a partial definition on a term that ESSA intended to be crafted at the state and local level. AASA strongly believes that states should define consistently underperforming in the broader context of their accountability system and that such a definition includes any timeframe or constraints. AASA urges USED to revise its proposal around this term by removing any reference to timeline.  Summative Indicator: AASA is opposed to USED’s regulation (200.18) that requires the state plan to include one summative rating from at least three distinct rating categories for each school. The statute requires evaluation of LEAs and schools on academic and non-academic factors, but stopped short of requiring each to be rated by a single indicator. This step away from reducing a school to a single letter or number score is important and provides flexibility and support for more nuanced state and district reporting, including the use of data dashboards. Reliance on a summative indicator mirrors current reporting requirements, blurs the nuance that comes from multiple and varied indicators, unnecessarily hinders the ability of state and local education agencies to consider new approaches and increases the likelihood of states just maintaining the status quo of the broken NCLB.  Timeline for Implementation for Comprehensive Supports: AASA is opposed to the proposed regulation that would require all SEAs to identify LEAs in need of support/improvement for the start of the 2017-18 school year. It is very likely that states may not have their accountability plans finalized until well into the 2016-17 school year. This unnecessarily rushed timeline creates a scenario whereby a school in the first year of ESSA implementation will be labeled as needing support based on 2016-17 data, which is NCLB data. Given that 2017-18 is the first year of ESSA implementation, it follows that identification under ESSA would come only after ESSA-related data has been collected, at the end of the 2017-18 school year for the 2018-19 school year. AASA is concerned this proposal creates uncertainty as state and local education agencies may be unclear about which data is shaping their accountability status for 2017-18 (NCLB or ESSA?). AASA is concerned that this proposal, like the summative indicator, increases the likelihood that states maintain the status quo or, at best, implement only minor or peripheral changes to their systems. AASA proposes that USED treat the 2017-18 school year in a manner consistent with how it treated the 2016-17 school year after ESEA waivers expired, and freeze accountability ratings/labels.  School Approval in Comprehensive Supports and Improvement Plans: In 200.21, USED proposes that a school must approve the comprehensive support plan the LEA designs. AASA strongly supports the role of a school as a stakeholder informing the design of the support plan, but opposes the idea that the school must approve of the plan. When it comes to school governance, the school is part of a district, and the LEA is the governing entity. To the extent that the school is within a district, it is important to preserve the role of the district (at the superintendent/school board level) in ultimately approving/denying the approaches adopted for the schools it serves. We cannot provide the lowest-performing schools with a veto power over the LEA's improvement plan. It would be unusual and incongruous for ESSA to establish a "school" as an entity separate from the LEA; more troubling, such an interpretation could seriously interfere with LEAs' efforts to provide the quality education students in these schools deserve. AASA encourages USED to rewrite the regulation to ensure that schools are meaningfully engaged in the process of designing the support plan but stop short of requiring the school to explicitly approve the comprehensive support plan.  Foster Child Transport: AASA strongly opposes USED’s proposed regulation as it relates to the transportation of foster children. The USED proposal deems that when it comes to transporting children in foster care, if the child welfare agency and district cannot reach an agreement the LEA is fiscally liable to cover transportation costs. AASA agrees with the right of students in foster care to have transportation to their school of origin, but finds that USED’s proposed regulation is an egregious overreach in direct conflict with the underlying statute. The ESSA statute requires a collaborative approach between child welfare agencies and LEAs and provides that if there are additional costs for transporting students in foster care, the district "will provide transportation" for the child if the local child welfare agency agrees to reimburse the local educational agency for the cost of such transportation; if the local educational agency agrees to pay for the cost of such transportation; or if the local educational agency and the local child welfare agency agree to share the cost of such transportation. It does not identify any specific entity as fiscally liable although AASA would argue that the agency that determines the placement for the child and is financially responsible for all other costs associated with the child in foster care should be required to pay for costs pertaining to transportation. USED’s proposal directly undermines the collaborative, carefully negotiated language in ESSA and reduces the responsibility of the child welfare agency to meaningfully engage in discussions with the LEA. AASA reiterates that USED regulation in this area is unnecessary beyond simply underscoring that the LEA will provide transportation only in the three specified instances.

This document will be updated and revised.

Questions?

Noelle Ellerson ([email protected]) Sasha Pudelski ([email protected]) Leslie Finnan ([email protected])