Letter to U.S. Secretary of Education Arne Duncan: February 17, 2009

The Honorable Arne Duncan
Secretary
U.S. Department of Education
400 Maryland Avenue SW
Washington, D.C. 20202

Re:    Request for Deferral of Implementation of Certain Title I 
          Regulations of the Elementary and Secondary Education Act 
          (ESEA)

Dear Secretary Duncan:

The National School Boards Association (NSBA), representing over 15,000 local school boards through our state school boards associations, extends our congratulations again to you as U.S. Secretary of Education. We are very much encouraged by your appointment and look forward to working closely with you and your staff.

As you are aware, on October 28, 2008, the former U.S. Secretary of Education, Margaret Spellings, announced Final Regulations implementing certain provisions of Title I of the No Child Left Behind Act, specifically Accountability, Uniform and Disaggregated Graduation Rates, and Supplemental Services and Public School Choice. We would like to take this opportunity to share with you our concerns regarding those regulations and to request your consideration in deferring implementation of certain provisions until your staff has had an opportunity to fully review the impact that they will have on local school districts. And, for the requirement of the 20% set-aside for choice/supplemental services, they should be reviewed for their possible negative impact on expeditious implementation of Title I funds in the stimulus package (Item A).

A. Requirements for Title I Set-Asides/Stimulus Package. We remain concerned that the new regulations establish additional barriers in the use of unspent federal funds that are required to be set-aside for public school choice and SES. While the new regulations permit school districts to release the set-aside funds if they meet the criteria established by the new regulations, these regulations also provide for review and certification by the state education agency - with the added requirement that if the criteria for release of the funds have not been fully met, the amount of any unauthorized release must be added to the 20% set-aside requirement of the school district in the subsequent year. Given the increased Title I funding as a result of the stimulus package, this regulation would require local school districts to unnecessarily and counter-productively delay the release of federal funds that could otherwise be spent in classrooms, including teachers and teacher aides. Further, this new requirement raises several potential challenges to state and local school district program and budget guidelines.

B. Approval Process for Supplemental Service (SES) Providers. With respect to the state approval process for supplemental educational service (SES) providers, we remain concerned that states are not required to consult with their respective local school districts in the approval process for new SES providers. While modifications in the new regulations would permit self-certification by the school rather than to submit unnecessary reports, we believe that the opportunity for school districts to participate in the state-approval process regarding locally-based SES providers would be most meaningful prior to the initial state certification. The current regulations provide that local school districts only have an opportunity to provide information for the re-certification of SES-providers based on their direct experiences and formal evaluations.

C. High School Graduation Rate Calculations. We acknowledge the need to improve current high school graduation rates and agree that the current levels are unsatisfactory, particularly as they relate to African American and Hispanic students. However, we are concerned that the new regulations give no credit at all to local school districts that have invested in programs that produce “late graduates” if they take longer than four- or five-year restrictions currently contained in the new regulations.

First, we remain concerned that only two options are provided: 1) the four-year Adjusted Cohort Graduation Rate; or 2) the Optional Use of an Extended-year Adjusted Cohort Graduation Rate or Rates. This second option would provide options for schools and school districts to receive credit for students who take longer than four years, but not more than five years to graduate with a regular high school diploma. Recent studies conducted by the Center for Public Education (CPE) indicate that greater attention and recognition must be given to “late graduates” as these students achieve significantly better than GED recipients and those who fail to graduate, and receive life-long higher levels of compensation. You may view the full report at the Center for Public Education's website. Secondly, although the new regulations allow each state to set its own graduation goals and annual progress targets, the reporting requirements associated with graduation rates involves substantial data collection by the schools and school districts.

D. Unfair Criteria for Triggering Sanctions. We remain concerned that the regulations were not corrected to address current inequities in the accountability framework. As you are aware, the AYP regulations do not differentiate between annual performance changes by the “same subgroup” and performance changes by “different subgroups.” Consequently, even if one subgroup that had failed to meet AYP the previous year now meets AYP this year, but another subgroup that had met its AYP target now fails to meet its AYP target, the current regulations determine that the school has not met AYP for two consecutive years that then triggers additional sanctions. We are disappointed that the previous Secretary failed to make the correction by imposing sanctions only if the same subgroup fails to meet its goal for two consecutive years in the same subject. We continue to believe that former Secretary Spellings’ interpretation of the law punishes districts and schools that are successful in raising student achievement in a specific subgroup. Further, we believe that these regulations continue the unnecessary mislabeling of schools, and force the reallocation of limited federal funds to address the needs of the “newest” low-performing group rather than to strategically direct resources based on longer-trend documentation.

Finally, we should point out that some changes in the new regulations do address some of the needed program improvements including expansion of the programs to track individual student progress (growth models); clarification favoring the use of multiple measures of assessments in the same subjects; continued options for states to establish their N-size (although the manner in which N-sizes are being used in determining AYP remains flawed); and favorable clarification regarding highly qualified (HQ) determinations for special education teachers as long as they meet the requirements of IDEA.

Thank you for the opportunity to share with you our concerns regarding some of the current Title I regulations. In our view, it is essential that local school boards are granted some relief pending full reauthorization of the Elementary and Secondary Education Act (ESEA). We look forward to discussing these concerns with you as soon as practicable. In the meantime, if you have questions, please contact Reginald Felton, director of federal relations at 703-838-6782, or by e-mail at rfelton@nsba.org.

Sincerely,

Michael A. Resnick
Associate Executive Director