[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Rules and Regulations]
[Pages 86076-86248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27985]



[[Page 86075]]

Vol. 81

Tuesday,

No. 229

November 29, 2016

Part II





Department of Education





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34 CFR Parts 200 and 299





Elementary and Secondary Education Act of 1965, as Amended by the Every 
Student Succeeds Act--Accountability and State Plans; Final Rule

Federal Register / Vol. 81 , No. 229 / Tuesday, November 29, 2016 / 
Rules and Regulations

[[Page 86076]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 299

RIN 1810-AB27
[Docket ID ED-2016-OESE-0032]


Elementary and Secondary Education Act of 1965, as Amended by the 
Every Student Succeeds Act--Accountability and State Plans

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations implementing programs 
under title I of the Elementary and Secondary Education Act of 1965 
(ESEA) to implement changes to the ESEA by the Every Student Succeeds 
Act (ESSA) enacted on December 10, 2015. The Secretary also updates the 
current ESEA general regulations to include requirements for the 
submission of State plans under ESEA programs, including optional 
consolidated State plans.

DATES: These regulations are effective January 30, 2017.

FOR FURTHER INFORMATION CONTACT: Meredith Miller, U.S. Department of 
Education, 400 Maryland Avenue SW., room 3C106, Washington, DC 20202-
2800.
    Telephone: (202) 401-8368 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: On December 10, 2015, President 
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA, 
which provides Federal funds to improve elementary and secondary 
education in the Nation's public schools. The ESSA builds on ESEA's 
legacy as a civil rights law and seeks to ensure that every child, 
regardless of race, income, background, or where they live has the 
opportunity to obtain a high-quality education. Through the 
reauthorization, the ESSA made significant changes to the ESEA for the 
first time since the ESEA was reauthorized through the No Child Left 
Behind Act of 2001 (NCLB), including significant changes to title I.
    In particular, the ESSA significantly modified the accountability 
requirements of the ESEA. Whereas the ESEA, as amended by the NCLB, 
required a State educational agency (SEA) to hold schools accountable 
based solely on results on statewide assessments and one other academic 
indicator, the ESEA, as amended by the ESSA, requires each SEA to have 
an accountability system that is State-determined and based on multiple 
indicators, including, but not limited to, at least one indicator of 
school quality or student success and, at a State's discretion, an 
indicator of student growth. The ESSA also significantly modified the 
requirements for differentiating among schools and the basis on which 
schools must be identified for further comprehensive or targeted 
support and improvement. Additionally, the ESSA no longer requires a 
particular sequence of escalating interventions in title I schools that 
are identified and continue to fail to make adequate yearly progress 
(AYP). Instead, it gives SEAs and local educational agencies (LEAs) 
discretion to determine the evidence-based interventions that are 
appropriate to address the needs of identified schools.
    In addition to modifying the ESEA requirements for State 
accountability systems, the ESSA also modified and expanded upon the 
ESEA requirements for State and LEA report cards. The ESSA continues to 
require that report cards be concise, presented in an understandable 
and uniform format, and, to the extent practicable, in a language that 
parents can understand, but now also requires that they be developed in 
consultation with parents and that they be widely accessible to the 
public. The ESSA also requires that report cards include additional 
information that was not required to be included on report cards under 
the ESEA, as amended by the NCLB, such as information regarding per-
pupil expenditures of Federal, State, and local funds; the number and 
percentage of students enrolled in preschool programs; where available, 
the rate at which high school graduates enroll in postsecondary 
education programs; information regarding the number and percentage of 
English learners achieving English language proficiency (ELP), and 
certain data collected through the Civil Rights Data Collection (CRDC). 
In addition, the ESSA requires that report cards include certain 
information for subgroups of students for which information was not 
previously required to be reported, including homeless students, 
students in foster care, and students with a parent who is a member of 
the Armed Forces.
    Further, the ESEA, as amended by the ESSA, authorizes an SEA to 
submit, if it so chooses, a consolidated State plan or consolidated 
State application for covered programs, and authorizes the Secretary to 
establish, for each covered program, the descriptions, information, 
assurances, and other material required to be included in a 
consolidated State plan or consolidated State application.
    On May 31, 2016, the Secretary published a notice of proposed 
rulemaking (NPRM) for the title I, part A program and general ESEA 
regulations in the Federal Register (81 FR 34539). We issue these 
regulations to provide clarity and support to SEAs, LEAs, and schools 
as they implement the ESEA, as amended by the ESSA--particularly, the 
ESEA requirements regarding accountability systems, State and LEA 
report cards, and consolidated State plans--and to ensure that key 
requirements in title I of the ESEA, as amended by the ESSA, are 
implemented consistent with the purpose of the law: ``to provide all 
children significant opportunity to receive a fair, equitable, and 
high-quality education, and to close educational achievement gaps.''
    Summary of the Major Provisions of This Regulatory Action: The 
following is a summary of the major substantive changes in these final 
regulations from the regulations proposed in the NPRM. The rationale 
for each of these changes is discussed in the Analysis of Comments and 
Changes section of this document.
     Section 200.12 has been revised to clarify that if an 
authorized public chartering agency, consistent with State charter 
school law, acts to decline to renew or to revoke a charter for a 
particular charter school, the decision of the agency to do so 
supersedes any notification from the State that the school must 
implement a comprehensive or targeted support and improvement plan 
under Sec. Sec.  200.21 or 200.22.
     The Department made a number of changes to Sec.  200.13, 
which describes a State's long-term goals and measurements of interim 
progress for achievement, graduation rates, and progress toward ELP for 
English learners:
--Section 200.13(a) is revised to clarify that long-term goals and 
measurements of interim progress for academic achievement must measure 
the percentage of students attaining grade-level proficiency on the 
State's annual assessments in reading/language arts and mathematics 
based on the State's academic achievement standards under section 
1111(b)(1) of the ESEA, as amended by the ESSA, including alternate 
academic achievement standards for students

[[Page 86077]]

with the most significant cognitive disabilities as defined by the 
State under section 1111(b)(1)(E) of the ESEA.
--Section 200.13(c) requires States to establish long-term goals and 
measurements of interim progress for increases in the percentage of 
English learners making annual progress toward attaining ELP using a 
uniform procedure, applied to all English learners in a consistent 
manner, that establishes applicable timelines for English learners 
sharing particular characteristics to attain ELP after a student's 
identification and student-level targets within that timeline. The 
final rule is revised to require each State, in its State plan, to 
describe how it sets research-based, student-level targets; a rationale 
for a State-determined maximum number of years in its uniform 
procedure; and the applicable timelines over which English learners 
sharing particular characteristics are expected to attain ELP.

     In Sec.  200.14, which describes the requirements related 
to the five indicators--Academic Achievement, Academic Progress, 
Graduation Rate, Progress in Achieving English Language Proficiency, 
and School Quality or Student Success--within the statewide 
accountability system, the final regulations include the following 
significant changes:

--Section 200.14(b)(1)(i) and (ii) is reorganized and revised to 
clarify that the Academic Achievement indicator (1) must include a 
grade-level proficiency measure based on the State's academic 
achievement standards under section 1111(b)(1) of the ESEA, including 
alternate academic achievement standards for students with the most 
significant cognitive disabilities as defined by the State under 
section 1111(b)(1)(E) of the ESEA; (2) may include measures of student 
performance below or above the proficient level (e.g., in an 
achievement index), so long as a school receives less credit for the 
performance of a student who is not yet proficient than for the 
performance of a student who is proficient, and the credit a school 
receives for the performance of a more advanced student does not fully 
compensate for the performance of a student that is not yet proficient; 
and (3) does not require State assessments in reading/language arts and 
mathematics that are ``equally measured.''
--Section 200.14(b)(1) and (3) is revised to ensure that the Academic 
Achievement and Graduation Rate indicators are based on the 
corresponding long-term goals under Sec.  200.13.
--Section 200.14(c)(4) is revised to remove the requirement that a 
given measure may be used no more than once across the accountability 
indicators.
--Section 200.14(d) is revised to clarify that States must demonstrate 
that measures in the Academic Progress and School Quality or Student 
Success indicators are supported by research that high performance or 
improvement on such measures is likely to increase student learning 
(e.g., grade point average, credit accumulation, or performance in 
advanced coursework), or--for measures at the high school level--
graduation rates, postsecondary enrollment, postsecondary persistence 
or completion, or career readiness.

     Section 200.15, which describes the requirements related 
to participation in statewide assessments and the annual measurement of 
achievement, is revised as follows:

--Section 200.15(a) is revised to clarify the distinction between the 
statutory requirement for States to administer assessments to all 
students and the statutory requirement for States to measure, for 
accountability purposes, whether at least 95 percent of all students 
and of each subgroup of students participated in State assessments.
--Section 200.15(b)(2)(iv) is revised so that a State may develop and 
use a State-determined action or set of actions that is sufficiently 
rigorous to improve the school's participation rate in order to factor 
the statutory requirement for 95 percent participation on statewide 
assessments into its accountability system, rather than requiring such 
actions to be equally rigorous and result in a similar outcome as other 
possible options.

     In Sec.  200.16, which describes the requirements related 
to inclusion of subgroups of students, the final regulations include 
the following significant changes:

--Section 200.16(b) is revised to permit a student previously 
identified as a child with a disability to be included in the children 
with disabilities subgroup for up to two years following the year in 
which the student exits special education services, for the limited 
purpose of measuring indicators that use results from required State 
assessments under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended 
by the ESSA. A State choosing to include former children with 
disabilities for these indicators must include all such students, for 
the same period of time, and must also include all such students in 
determining whether the subgroup meets the State's n-size for purposes 
of calculating any such indicator.
--Section 200.16(c)(1) is revised to allow former English learners to 
be included in the English learner subgroup for up to four years 
following the year in which the student achieves English language 
proficiency consistent with the standardized, statewide exit 
procedures, when measuring any indicator under Sec.  200.14(b) that 
uses data from required assessments under section 1111(b)(2)(B)(v)(I) 
of the ESEA, as amended by the ESSA.

     Section 200.17 is revised to clarify that if a State 
proposes to use an n-size above 30 students, the justification it 
provides in its State plan must include data on the number and 
percentage of schools that will not be held accountable for the 
performance of each subgroup of students described in Sec.  200.16(a) 
compared to such data if the State had selected an n-size of 30.
     Within section 200.18, the Department made the following 
substantial revisions from the NPRM, primarily to better align 
requirements for differentiation in Sec.  200.18 with requirements for 
identification of schools in Sec.  200.19:

--Section 200.18 is renamed to clarify all of the components within 
annual meaningful differentiation of schools: ``performance levels, 
data dashboards, summative determinations, and indicator weighting.''
--Section 200.18(a)(2)-(3) describes the requirements for each State to 
describe a school's level of performance on each accountability 
indicator, from among three performance levels that are distinct, 
aligned to a State's long-term goals, and clear and understandable to 
the public. The final rule clarifies that the levels must also be 
discrete, indicating that reporting on a continuous measure (e.g., 
scale scores) would not meet the requirement, and that a data 
``dashboard'' is an example of a way for a State to report performance 
levels for a school.
--Section 200.18(a)(4) specifies that a State must provide each school 
with a single summative ``determination,'' from among at least three 
categories, based on all of the accountability

[[Page 86078]]

indicators. We are revising the final regulation to clarify that a 
State may either use (1) determinations that include the two categories 
of schools required to be identified in Sec.  200.19 (i.e., schools 
identified for comprehensive support and improvement and targeted 
support and improvement) and a third category of unidentified schools, 
or (2) determinations distinct from the categories of schools described 
in Sec.  200.19. We are also revising Sec.  200.18(a)(4) to clarify 
that the summative determination must meaningfully differentiate 
between schools based on differing performance on the indicators and 
provide information on a school's overall performance in a clear and 
understandable manner on annual report cards.
--Section 200.18(a)(6) is revised to clarify that annual meaningful 
differentiation must inform the State's methodology to identify schools 
under Sec.  200.19, including identification of consistently 
underperforming subgroups of students.
--Section 200.18(c)(3) is revised to require each State to demonstrate 
that a school with a consistently underperforming subgroup will receive 
a lower summative determination than it would have otherwise received 
if the school had no consistently underperforming subgroups.
--Section 200.18(d)(1)(ii) is revised to require each State to 
demonstrate in its State plan that schools that are low-performing on 
indicators afforded ``substantial'' weight are more likely to be 
identified under Sec.  200.19.
--Section 200.18(d)(1)(iii) incorporates provisions from the proposed 
State plan regulations to clarify that a State may develop and propose 
to use alternate methods for differentiation and identification under 
Sec. Sec.  200.18-200.19 in order to ensure all public schools are 
included, such as schools in which no grades are assessed, schools with 
variant grade configurations, small schools, newly opened schools, and 
schools designed to serve special populations of students (e.g., 
newcomer English learners, students receiving alternative programming 
in alternative educational settings, and students living in local 
institutions for neglected or delinquent children, including juvenile 
justice facilities).

     The Department made several changes to Sec.  200.19, 
primarily for clarification or to align requirements with other 
sections of the regulations:

--Section 200.19(a)(1) is revised to clarify that each State must 
identify the lowest performing five percent of all title I schools, not 
five percent of title I schools at each grade span, and to make 
conforming changes based on the significant changes under Sec.  200.18.
--Section 200.19(a)(3) is revised to allow each State to determine how 
long a school with a low-performing subgroup identified for targeted 
support and improvement that also must receive additional targeted 
support under Sec.  200.19(b)(2) may implement a targeted support plan 
before the State must determine that such a school has not met the 
State's exit criteria and must, if it receives title I funds, be 
identified for comprehensive support and improvement. A corresponding 
change is made to Sec.  200.22(f)(2).
--Section 200.19(b)(2) is revised to clarify that a State must use the 
same process to identify schools with individual subgroups performing 
at or below the performance of all students in the lowest-performing 
five percent of title I schools as it uses to identify the lowest-
performing five percent of title I schools for comprehensive support 
and improvement.
--Section 200.19(c)(1) is revised to allow a State, in order to 
identify schools with one or more consistently underperforming 
subgroups, to consider a school's performance among each subgroup of 
students in the school over more than two years, if the State 
demonstrates that a longer timeframe will better support low-performing 
subgroups of students to make significant progress in achieving long-
term goals and measurements of interim progress in order to close 
statewide proficiency and graduation rate gaps, consistent with section 
1111(c)(4)(A)(i)(III) of the ESEA, as amended by the ESSA, and Sec.  
200.13.
--Section 200.19(c)(3)(i) is revised to ensure that when a State 
chooses a definition for consistently underperforming subgroups that 
considers a subgroup's performance on the State's measurements of 
interim progress or State-designed long-term goals, the SEA also 
considers a schools' performance on the indicators for which goals and 
measurements of interim progress are not required, consistent with the 
requirement that the State's definition be based on all indicators.
--Section 200.19(c)(3) is revised to remove options for a State to 
define a consistently underperforming subgroup of students based on 
indicator performance levels, a single measure within an indicator, or 
performance gaps between the subgroup and State averages as described 
in proposed Sec.  200.19(c)(3)(ii)-(iv).
--Section 200.19(d)(1)(i)-(ii) is revised to allow a State to delay 
identification of schools for comprehensive support and improvement and 
schools with a low-performing subgroup for targeted support and 
improvement that also must receive additional targeted support until no 
later than the beginning of the 2018-2019 school year.
--Section 200.19(d)(1)(iii) is revised to allow a State to delay 
identification of schools with consistently underperforming subgroups 
for targeted support and improvement until no later than the beginning 
of the 2019-2020 school year.
--Section 200.19(d)(2) is revised to clarify that for each year in 
which a State must identify schools for comprehensive or targeted 
support and improvement, it must do so using data from the preceding 
school year, except that the State may use adjusted cohort graduation 
rate data from the year immediately prior to the preceding school year.

     The Department made revisions to Sec.  200.20 for clarity, 
including:

--Section 200.20(a) is revised to use consistent terminology for how 
States can produce averaged results by combining data across both 
school years and grades within a school and to clarify that a State 
combining data must sum the total number of students in each subgroup 
of students described in Sec.  200.16(a)(2) across all school years 
when calculating a school's performance on each indicator under Sec.  
200.14 and determining whether the subgroup meets the State's minimum 
number of students described in Sec.  200.17(a)(1).
--Section 200.20(a) is revised to clarify the limited purposes in the 
accountability system for which States may average school-level data 
across school years.

     Within sections Sec. Sec.  200.21 and 200.22, 
Comprehensive Support and Improvement and Targeted Support and 
Improvement, the Department made the following substantial revisions 
from the NPRM, primarily to strengthen and clarify the requirements for 
school improvement:

--Section 200.21(c)(4) is revised to require that an LEA, in conducting 
a school-level needs assessment for each school within the LEA 
identified for comprehensive support and improvement, consider a 
school's

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unmet needs, including with respect to students, school leadership and 
instruction staff, quality of the instructional program, family and 
community involvement, school climate, and distribution of resources.
--Section 200.21(d)(1) is revised to clarify that for LEAs affected by 
section 8538 of the ESEA, the LEA must develop school improvement plans 
in partnership with Indian tribes, among other required stakeholders.
--Section 200.21(d)(1), and similar requirements in Sec. Sec.  
200.15(c)(1)(i) and 200.22(c)(1), is revised to encourage the 
involvement of students, as appropriate, in developing school 
improvement plans.
--Section 200.21(d)(3) is revised to clarify examples of interventions 
that an LEA may consider implementing in an identified school and to 
clarify optional State authorities for State-approved lists of 
interventions or State-determined interventions, further described in 
Sec.  200.23(c).
--Section 200.21(d)(3)(vi) is revised to clarify that differentiated 
improvement activities that utilize evidence-based interventions may be 
used in high schools that primarily serve students returning to 
education or who, based on their grade or age, are significantly off 
track to accumulate sufficient academic credits to meet State high 
school graduation requirements.
--Sections 200.21(d)(4) and 200.22(c)(7)(i) are revised to require that 
LEAs, in identifying and addressing resource inequities in schools 
identified for comprehensive support and improvement, or schools with a 
low-performing subgroup identified for targeted support and improvement 
that also must receive additional targeted support, respectively, must 
review access to advanced coursework, access to full-day kindergarten 
programs and preschool programs, and access to specialized 
instructional support personnel.
--Consistent with the revisions to Sec.  200.21(d)(3)(vi), Sec.  
200.21(g) is revised to clarify State discretion to exclude very small 
high schools from developing and implementing a support and improvement 
plan if such schools are identified as a low graduation rate high 
school under Sec.  200.19(a)(2).
--Sections 200.21(f) and 200.22(f) are revised to require that each SEA 
make its State-established exit criteria publicly available.

     The Department has revised Sec.  200.23 as follows:

--Section 200.23(a) is revised to clarify that in periodically 
reviewing resources available for each LEA in the State serving a 
significant number or percentage of schools identified for 
comprehensive or targeted support and improvement, the State must 
consider each of the resources in its review that is listed in Sec.  
200.21(d)(4)(i)(A)-(E) and consider resources in such LEAs as compared 
to all other LEAs in the State and in schools in those LEAs as compared 
to all other schools in the State.
--Section 200.23(c)(1) is revised to list examples of additional 
actions a State may take to initiate improvement at the LEA level, or, 
consistent with State charter school law, in an authorized public 
chartering agency, that serves a significant number or percentage of 
schools identified for comprehensive support and improvement and that 
are not meeting exit criteria or a significant number or percentage of 
schools in targeted support and improvement.
--Section 200.23(c)(1) is revised to clarify that any action to revoke 
or non-renew a school's charter must be taken in coordination with the 
applicable authorized public chartering agency and be consistent with 
both State charter school law and the terms of the school's charter.
--Section 200.23(c)(3) is revised to clarify the distinction between 
this provision and a related provision in Sec.  200.23(c)(2). The final 
regulations give States flexibility to establish evidence-based 
interventions for use by LEAs and schools identified for support and 
improvement either by creating lists of State-approved, evidence-based 
interventions for use in any identified school, or by developing their 
own alternative evidence-based interventions that may be used 
specifically in comprehensive support and improvement schools.

     The Department has made the following significant changes 
to Sec.  200.24, which describes requirements for school improvement 
funding under section 1003 of the ESEA:

--Section Sec.  200.24(c)(2)(ii) is revised to clarify that a State may 
award a grant of less than the minimum award size if the State 
determines that a smaller amount is appropriate based on the school's 
enrollment, identified needs, selected evidence-based interventions, 
and other relevant factors described in the LEA's application.
--Section 200.24(c)(4)(iii)(A) is revised to require that a State 
consider, in determining strongest commitment, both the proposed use of 
evidence-based interventions that are supported by the strongest level 
of evidence available, and whether the evidence-based interventions are 
sufficient to support the school in making progress toward meeting the 
applicable exit criteria under Sec. Sec.  200.21 or 200.22.

     The Department revised Sec.  200.30 for clarity, including 
as follows:

--Section 200.30(e) is revised to provide for a State to delay 
inclusion of per-pupil expenditure data on its report card until no 
later than June 30 following the December 31 deadline for reporting all 
other information required under section 1111(h) of the ESEA, as 
amended by the ESSA.
--Section 200.30(e)(3)(ii) is revised to clarify that a State 
requesting a one-time, one-year extension of the December 31 deadline 
for disseminating report cards must submit a plan and timeline for how 
it will meet the December 31 deadline for report cards that include 
information from the 2018-2019 school year.
--Section 200.30(f)(1)(iv) clarifies that students in the subgroup of 
``student with a parent who is a member of the Armed Forces'' includes 
students whose parents are on full-time National Guard duty. Further, 
Sec.  200.30(f)(1)(iv)(C) defines full-time National Guard duty.

     The Department revised Sec.  200.31 for clarity, including 
as follows:

--Section 200.31(b)(3) removes the page limit requirement on the LEA 
overview for each school served by the LEA.
--Section 200.31(e) is revised to provide for an LEA to delay inclusion 
of per-pupil expenditure data until no later than June 30 following the 
December 31 deadline for reporting all other information required under 
section 1111(h) of the ESEA, as amended by the ESSA.

     The Department revised Sec.  200.34, which provides the 
requirements on how to calculate the adjusted cohort graduation rate, 
including the following significant changes:

--Section 200.34(a)(3)(iii) is revised to clarify the requirements for 
removing a student entering a prison or juvenile justice facility from 
a sending school's cohort.
--Section 200.34(a)(5) is added to clarify that a State must include 
students with the most significant cognitive disabilities who receive a 
State-defined alternate diploma in the calculation of the adjusted 
cohort

[[Page 86080]]

graduation rate in the year in which they exit, and describes how they 
should be treated in the numerator and the denominator.
--Section 200.34(c)(2) is revised to clarify that a diploma based on 
meeting a student's Individualized Education Program (IEP) goals is 
considered a lesser credential.
--Section 200.34(d)(2) is revised to remove language limiting an 
extended-year graduation rate to seven years.
--Section 200.34(e)(2) is added to describe the criteria a State must 
use to include students in the following subgroups in the graduation 
rate calculation: English Learners, children with disabilities, 
children who are homeless, and children who are in foster care.
--Section 200.34(e)(f) has been removed and revised requirements have 
been placed in Sec.  200.34(a)(5).

     The Department has revised Sec.  200.35 for clarity, 
including:

--Section 200.35(a) and (b) has been revised to clarify that State and 
LEA report cards must report the total current expenditures that were 
not reported in school-level per-pupil expenditure figures.
--Section 200.35(a) and (b) has been revised to clarify that State and 
LEA report cards must, when reporting per-pupil expenditures, include 
with State and local funds all Federal funds intended to replace local 
tax revenues.
--Section 200.35(c)(2) has been revised to clarify the denominator used 
for purposes of calculating per-pupil expenditures must be the same 
figure as reported to the National Center for Education Statistics 
(NCES) on or about October 1.
     The Department made a number of changes to Sec.  299.13, 
which provides an overview of the State plan requirements.

--Section 299.13(c)(ii) is revised to require that an SEA ensures that 
LEAs will collaborate with local child welfare agencies to develop and 
implement clear written procedures that ensure children in foster care 
receive transportation to and from their school of origin when in their 
best interest.
--Section 299.13(c)(iii) was moved from proposed Sec.  299.18(c) to 
require an SEA to assure that it will publish and update specific 
educator equity information and data regarding ineffective, out-of-
field, and inexperienced teachers.
--Section 299.13(d)(3) is revised to allow an SEA to request a 3 year 
extension, rather than the 2 year extension originally proposed, to 
calculate statewide rates of educator equity data using school-level 
data when meeting the requirements of Sec.  299.18(c)(3)(i).

     The Department made the following changes in Sec.  299.14, 
which describes the framework and the requirements when submitting a 
consolidated State plan:

--Section 299.14(c) was added to include consolidated State plan 
assurances on coordination of federal programs, challenging academic 
standards and assessments, State support and improvement for low-
performing schools, participation for private school children and 
teachers, and appropriate identification of children with disabilities. 
With the exception of the assurance regarding participation for private 
school children and teachers, the required assurances were previously 
required descriptions in the proposed consolidated State plan 
requirements, with revisions made in order to reduce unnecessary burden 
on each SEA.

     The Department made the following changes in Sec.  299.15, 
which describes the requirements related to consultation on the 
consolidated State plan:

--Section 299.15 is revised to include two additional stakeholder 
groups with whom an SEA must consult in developing its consolidated 
State plan--representatives of private school students and early 
childhood educators and leaders--and to clarify that the stakeholder 
groups listed in Sec.  299.15(a) represent the minimum stakeholder 
groups with whom an SEA is expected to consult.
--Section 299.15 is further revised such that Sec.  299.15(b) no longer 
includes the proposed requirement that each SEA describe its plans for 
coordinating across Federal educational laws. Section 299.15(b) now 
includes the performance management requirements which only require an 
SEA to describe its performance management system once, and not for 
each component of its consolidated State plan.

     The Department made a number of changes to Sec.  299.16, 
which describes the requirements related to challenging academic 
assessments, including:

--The final regulations do not require a State that elects to submit a 
consolidated State plan to provide evidence in such plan related to 
challenging academic content standards and aligned academic achievement 
standards, alternate academic achievement standards, as applicable, or 
ELP standards but rather, in Sec.  299.14(c)(2), requires the SEA to 
assure that it will meet the statutory requirements. Specifically, the 
assurance in Sec.  299.14(c)(2) clarifies that a State that elects to 
submit a consolidated State plan will meet the statutory requirements 
in section 1111(b)(1)(A)-(F) and 1111(b)(2) of the Act, including 
requirements related to alternate academic achievement standards and 
alternate assessments for students with the most significant cognitive 
disabilities and ELP standards and assessments.
--The final regulations do not require an SEA that elects to submit a 
consolidated State plan to provide evidence in such plan related to a 
State's academic assessments, including providing the names of such 
assessments and evidence that such assessments meet the requirements 
under section 1111(b)(2) of the ESEA and applicable regulations. 
Rather, the SEA must provide an assurance under Sec.  299.14(c)(2) that 
it will meet the statutory requirements related to a State's academic 
assessments.
--Proposed Sec.  299.16(b)(7) has been removed, and the Department will 
not require an SEA to describe in its consolidated State plan how it 
will use funds under section 1201 of the ESEA.

     The Department has revised some provisions in Sec.  299.17 
for clarification and alignment with revisions to other provisions in 
the final regulations as follows:

--Section 299.17(a) clarifies that, with respect to its State-designed 
long-term goals under Sec.  200.13, an SEA must both provide its 
baseline, measurements of interim progress, and long-term goals, and 
describe how it established its long-term goals and measurements of 
interim progress.
--Section 299.17(b)(5)(iv) clarifies that an SEA must describe, among 
other elements as noted in Sec.  299.17(b), how its methodology for 
differentiating all public schools in the State meets the requirements 
under Sec.  200.18(c)(3) and (d)(1)(ii).
--Section 299.17(b)(8) incorporates the requirements for an SEA to 
describe how it includes all public schools in the State in its 
accountability system if it is different from the methodology described 
in Sec.  299.17(b)(5), consistent with Sec.  200.18(d)(1)(iii).
--Section 299.17(d)(2) is revised to include a description of how an 
SEA will provide technical assistance to

[[Page 86081]]

each LEA in the State serving a significant number or percentage of 
schools identified for comprehensive or targeted support and 
improvement, including how it will provide technical assistance to LEAs 
to ensure the effective implementation of evidence-based interventions, 
consistent with Sec.  200.23(b).
--Section 299.17(d)(4) is revised to require an SEA to describe how it 
will periodically review, identify, and, to the extent practicable, 
address resources available in LEAs serving a significant number or 
percentage of comprehensive or targeted support and improvement schools 
consistent with Sec.  200.23(a).

     The Department made a number of changes in Sec.  299.18, 
which provides the requirements related to supporting excellent 
educators as follows:

--Section 299.18(a) is amended to clarify that an SEA need only 
describe the State's system of certification and licensure, its 
strategies to improve educator preparation programs, and its strategies 
for professional growth and improvements for educators that addresses 
induction, development, compensation, and advancement if it intends to 
use Federal funds for these purposes.
--Section 299.18(b) is amended to remove the list of student subgroups 
that was provided in proposed Sec.  299.18(b)(2).
--Section 299.18(c) is amended to clarify that an SEA must describe 
whether there are differences in the rates at which low-income and 
minority students are taught by ineffective, out-of-field, or 
inexperienced teachers.
--Section 299.18(c)(5) is revised to clarify that an SEA must identify 
likely causes of the most significant differences in the rates at which 
low-income and minority students are taught by ineffective, out-of-
field, or inexperienced teachers.
--Section 299.18(c)(5)(ii) is revised to clarify that an SEA must 
prioritize strategies to address the most significant differences in 
the rates at which low-income and minority students are taught by 
ineffective, out-of-field, or inexperienced teachers.
--Section 299.18(c)(5)(iii) is revised so that an SEA must include its 
timeline and interim targets for eliminating any differences in the 
rates at which low-income and minority students are taught by 
ineffective, out-of-field, or inexperienced teachers.

     The Department made a number of changes in Sec.  299.19, 
which provides the requirements for an SEA to describe how it will 
ensure a well-rounded and supportive education for all students, 
including the following:

--Section 299.19(a)(1) is amended to clarify that State must describe 
use of title IV, part A funds and funds from other included programs, 
including strategies to support the continuum of a student's preschool-
12 education and to ensure all students have access to a well-rounded 
education. Such description must include how the SEA considered the 
academic and non-academic needs of the subgroups of students identified 
in Sec.  299.19(a)(1)(iii).
--Section 299.19(a)(2) is revised to clarify that a State need only 
describe its strategies to support LEAs to improve school conditions 
for student learning, effectively use technology, and engage families, 
parents, and communities if the State uses title IV, part A funds or 
funds from one or more of the included programs for such activities.
--Section 299.19(a)(2) removes the requirement for a State to describe 
how it will ensure the accurate identification of English learners. 
Section 299.19(b)(4) retains the requirement for each SEA to describe 
its standardized entrance and exit procedures for English learners.
--Section 299.19(b)(3) is revised to include program-specific 
requirements for title I, part D that requires each SEA to provide a 
plan for assisting the transition of children and youth between 
correctional facilities and locally operated programs and a description 
of the program objectives and outcomes that will be used to assess the 
effectiveness of the program.

    Please refer to the Analysis of Comments and Changes section of 
this preamble for a detailed discussion of the comments received and 
any changes made in the final regulations.
    Costs and Benefits: The Department believes that the benefits of 
this regulatory action outweigh any associated costs to SEAs and LEAs, 
which may be financed with Federal grant funds. These benefits include 
a more flexible, less complex and costly accountability framework for 
the implementation of the ESEA, as amended by the ESSA, that respects 
State and local decision-making; the efficient and effective collection 
and dissemination of a wide range of education-related data that will 
inform State and local decision-making; and an optional, streamlined 
consolidated application process that will promote the comprehensive 
and coordinated use of Federal, State, and local resources to improve 
educational outcomes for all students and all subgroups of students. 
Please refer to the Regulatory Impact Analysis section of this document 
for a more detailed discussion of costs and benefits, including changes 
in estimated costs in response to public comment. Consistent with 
Executive Order 12866, the Secretary has determined that this action is 
economically significant and, thus, is subject to review by the Office 
of Management and Budget under the order.
    Public Comment: In response to our invitation to comment in the 
NPRM, 21,609 parties submitted comments on the proposed regulations.
    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain, with the exception of a number of 
cross-cutting issues, which are discussed together under the heading 
``Cross-Cutting Issues.'' Generally, we do not address technical and 
other minor changes, or suggested changes the law does not authorize us 
to make under the applicable statutory authority. In addition, we do 
not address general comments that raised concerns not directly related 
to the proposed regulations or that were otherwise outside the scope of 
the regulations, including comments that raised concerns pertaining to 
particular sets of academic standards or the Department's authority to 
require a State to adopt a particular set of academic standards, as 
well as comments pertaining to the Department's regulations on 
statewide assessments.
    Tribal Consultation: The Department held four tribal consultation 
sessions on April 24, April 28, May 12, and June 27, 2016, pursuant to 
Executive Order 13175 (``Consultation and Coordination with Indian 
Tribal Governments''). The purpose of these tribal consultation 
sessions was to solicit tribal input on the ESEA, as amended by the 
ESSA, including input on several changes that the ESSA made to the ESEA 
that directly affect Indian students and tribal communities. The 
Department specifically sought input on: The new grant program for 
Native language Immersion schools and projects; the report on Native 
American language medium education; and the report on responses to 
Indian student suicides. The Department announced the tribal 
consultation sessions via listserv emails and Web site postings on 
http://www.edtribalconsultations.org/.
    During the consultation session held on June 27, 2016, which was 
held during the public comment period, the attendees discussed a range 
of topics

[[Page 86082]]

pertaining to the ESEA, as amended by the ESSA, many of which related 
to provisions and titles of the law that fall outside the scope of 
these regulations. We do not address those comments in these 
regulations, but we are continuing to consider them in accordance with 
the Department's Tribal Consultation Policy, which is available at: 
http://www.edtribalconsultations.org/documents/TribalConsultationPolicyFinal2015.pdf.
    A number of participants at the June 27, 2016 consultation session 
provided input pertaining to these regulations. For example, a number 
of participants expressed concerns about the consultation, or lack of 
consultation, conducted by States and districts with local tribes. 
Participants wished to be more involved in the development of State and 
local policies that affect Native students. A few participants 
expressed specific concerns that the proposed regulation regarding the 
minimum number of students that must be in a subgroup for that subgroup 
to be included in accountability determinations would not ensure that 
Native students were included in accountability determinations to the 
maximum extent possible.
    The Department considered the input provided during the first three 
consultation sessions in developing the proposed requirements. We 
considered input from the June 27, 2016 tribal consultation session on 
the topics that are within the scope of these regulations, as part of 
public comments received on the NPRM. We respond to the comments from 
that session that are within the scope of these regulations under the 
sections of the proposed regulations to which they pertain.
    Analysis of Comments and Changes: An analysis of the comments and 
changes in the regulations since publication of the NPRM follows.

Cross-Cutting Issues

Legal Authority
    Comments: A number of commenters asserted that these regulations 
constitute an overreach by the Department because the regulations 
include requirements pertaining to topics on which the ESEA, as amended 
by the ESSA, delegates authority to States and LEAs. A number of 
commenters cited specific statutory provisions that are intended to 
limit the Department's authority to create new requirements or criteria 
for statewide accountability systems beyond those specifically 
enumerated in the ESEA, as amended by the ESSA. Some of these 
commenters contended that any regulatory requirement that is not 
specifically authorized by the statute and that establishes parameters 
for how States or LEAs implement the law exceeds the Department's 
authority and violates the statute.
    Discussion: Section 410 of the General Education Provisions Act 
(GEPA), 20 U.S.C. Sec.  1221e-3, authorizes the Secretary, ``in order 
to carry out functions otherwise vested in the Secretary by law or by 
delegation of authority pursuant to law, . . . to make, promulgate, 
issue, rescind, and amend rules and regulations governing the manner of 
operations of, and governing the applicable programs administered by, 
the Department.'' Section 414 of the Department of Education 
Organization Act (DEOA) similarly authorizes the Secretary to prescribe 
such rules and regulations as the Secretary determines necessary or 
appropriate to administer and manage the functions of the Secretary or 
the Department. 20 U.S.C. 3474. Section 1601(a) of the ESEA, as amended 
by the ESSA, bolsters this general authority through an additional 
grant of authority for the Secretary to issue regulations under title I 
of the ESEA. That provision states that the Secretary ``may issue . . . 
such regulations as are necessary to reasonably ensure that there is 
compliance with this title.'' Further, section 8302(a)(1) of the ESEA, 
as amended by the ESSA, authorizes the Secretary to ``establish 
procedures and criteria'' for the submission of consolidated State 
plans.
    The provisions of these regulations are wholly consistent with the 
Department's rulemaking authority. In particular, section 1001 of the 
ESEA, as amended by the ESSA, establishes the purpose of title I of the 
statute, which is ``to provide all children significant opportunity to 
receive a fair, equitable, and high-quality education, and to close 
educational achievement gaps.'' In furtherance of that goal, section 
1111(a) requires any State that desires to receive a grant under title 
I, part A to file with the Secretary a plan that meets certain 
specified requirements, which may be submitted as part of a 
consolidated plan under section 8302 of the ESEA. Section 1111(c)(1) of 
the ESEA requires each State plan to describe a statewide 
accountability system that complies with the requirements of 
subsections 1111(c) and 1111(d). In addition, section 1111(h)(1) of the 
ESEA requires a State that receives assistance under title I, part A to 
prepare and disseminate widely to the public an annual State report 
card for the State as a whole that meets the requirements of that 
paragraph, and section 1111(h)(2) requires an LEA that receives 
assistance under title I, part A to prepare and disseminate an annual 
LEA report card that includes certain specified information on the 
agency as a whole and each school served by the agency.
    The Department has determined that each of these regulations is 
necessary to provide clarity with respect to provisions of the law that 
are vague or ambiguous, or to reasonably ensure that States and LEAs 
implement key requirements in title I of the ESEA, as amended by the 
ESSA--particularly the requirements regarding accountability systems, 
State and LEA report cards, and consolidated State plans--consistent 
with the statute and with the statutory purpose of the law.
    In developing these regulations, we carefully considered each of 
the statutory restrictions on the Department's authority, including the 
restrictions in section 1111(e)(1)(A) of the ESEA, as amended by the 
ESSA, as well as the more specific restrictions on the Department's 
authority to regulate particular aspects of statewide accountability 
systems in section 1111(e)(1)(B). We were also mindful of the fact that 
one of the goals of the reauthorization of the ESEA through the ESSA 
was to provide greater discretion and flexibility to States and LEAs 
than had been provided to them under the ESEA, as amended by NCLB, and 
have taken steps to ensure that States and LEAs have significant 
discretion and flexibility with respect to how they implement these 
regulations.
    However, we disagree with the contention that any regulation that 
is not explicitly authorized by the statute and places any limitation 
on a State's or LEA's discretion either violates the specific statutory 
restrictions or is otherwise inconsistent with the statute. A 
regulation would be inconsistent with the statute if it were directly 
contrary to the statutory requirements, or if it would be impossible 
for a State or LEA to comply with both the statutory and regulatory 
requirements. Regulatory requirements that provide greater specificity 
regarding how a State must implement certain requirements are not 
inconsistent with the statute or the Department's rulemaking authority 
in any way.
    We similarly disagree with the contention that any of the 
regulations governing statewide accountability systems add new 
requirements that are outside the scope of title I, part A of the ESEA, 
as amended by the ESSA. All of the regulatory requirements governing 
statewide accountability systems fall squarely within the scope of 
title I, part A, as those requirements implement the statutory 
requirements in sections

[[Page 86083]]

1111(c) and 1111(d) of the ESEA, as amended by the ESSA, and are 
specifically intended to ensure compliance with those sections. The 
fact that these regulations impose certain requirements for statewide 
accountability systems that are not specifically mentioned in those 
sections of the statute does not mean that those requirements fall 
outside the scope of title I, part A. Accordingly, the final 
regulations also do not violate section 1111(e) of the ESEA, as amended 
by the ESSA, which prohibits the Secretary from promulgating any 
regulations that are inconsistent with or outside the scope of title I, 
part A.
    Moreover, given that the Secretary has general rulemaking 
authority, it is not necessary for the statute to specifically 
authorize the Secretary to issue a particular regulatory provision. 
Rather, the Secretary may issue any regulation governing title I that 
is consistent with the ESEA, as amended by the ESSA, that enables the 
Secretary to ``carry out functions otherwise vested in the Secretary by 
law or by delegation of authority pursuant to law,'' and, with respect 
to regulations under title I of the ESEA, that the Secretary deems 
``necessary to reasonably ensure that there is compliance with'' that 
title.
    In promulgating these regulations, the Secretary has exercised his 
authority under GEPA, the DEOA, and under sections 1601(a) and 8302(a) 
of the ESEA, as amended by the ESSA, to issue regulations that are 
necessary to reasonably ensure that States, LEAs, and schools comply 
with the requirements for statewide accountability systems, 
consolidated State plans, and State and LEA report cards, and that they 
do so in a manner that advances the statutory goals.
    Changes: None.
    Comments: One commenter suggested that any of the Department's 
proposed regulations that proposed adding a requirement not expressly 
contained in the ESEA, as amended by the ESSA, might violate the 
Spending Clause of the U.S. Constitution (Article I, section 8, Clause 
1), by failing to provide ``clear notice'' to grantees of the 
requirements with which they must comply by accepting title I funds.
    Discussion: Congress' authority to enact the provisions in title I 
of the ESEA, as amended by the ESSA, governing statewide accountability 
systems, report cards, and State plans flows from its authority to ``. 
. . provide for general Welfare of the United States.'' Article I, 
Section 8, Clause 1 (commonly referred to as Congress' ``spending 
authority''). Under that authority, Congress authorized the Secretary 
to implement the provisions of the ESEA, as amended by the ESSA, and 
specifically authorized the Secretary to issue ``such regulations as 
are necessary to reasonably ensure that there is compliance with'' 
title I. Thus, the regulations do not conflict with Congress' authority 
under the Spending Clause. With respect to cases such as Arlington C. 
Sch. Dist. Bd. of Educ. v. Murphy, States have full notice of their 
responsibilities under these regulations through the rulemaking process 
the Department has conducted under the Administrative Procedure Act and 
the General Education Provisions Act to develop the regulations.
    Changes: None.
Data Collection
    Comments: Some commenters recommended removing Sec.  200.17, 
stating that the amount of data already collected has not improved 
academic achievement and that the Federal government should not collect 
data on children. These comments were also made regarding Sec. Sec.  
200.20-24, 200.30-31, 299.13, and 299.19 of the proposed regulations. 
In addition, a number of commenters recommended retaining Sec.  200.7 
of the current regulations, which sets forth the data disaggregation 
and privacy requirements under the NCLB, without commenting 
specifically on proposed Sec.  200.17, which would establish similar 
requirements under the ESSA.
    Discussion: The Department believes that data collected for 
purposes of accountability and data reported on State and LEA report 
cards are important for providing parents and stakeholders the 
information they need to understand how schools are held accountable 
and how students, including each subgroup of students, are performing. 
Further, collecting these data is necessary to comply with the 
requirements of section 1111 of the ESEA, as amended by the ESSA. In 
addition to promoting transparency, this information is essential for 
identifying and closing educational achievement gaps, which is one of 
the primary purposes of the law. We note that there are also multiple 
provisions in title I of the ESEA, as amended by the ESSA, including 
section 1111(c)(3), (g)(2)(N), and (i), that specify privacy 
protections for individuals related to collection or dissemination of 
data consistent with section 444 of the GEPA (20 U.S.C. 1232g, commonly 
known as the Family Educational Rights and Privacy Act of 1974). We 
further note, as we stated in the NPRM, that Sec.  200.17 retains and 
reorganizes the relevant requirements of current Sec.  200.7, which 
would be removed and reserved, so that these requirements (related to 
disaggregation of data primarily for accountability purposes) are 
incorporated into the sections of the final regulations pertaining to 
accountability, instead of pertaining to assessments.
    Changes: None.

Section 200.12 Single Statewide Accountability System

    Comments: A number of commenters asked for clarity about the 
timeline under which a State will be required to implement a statewide 
accountability system, noting the distinction between the school year 
in which data are collected and the school year in which schools are 
differentiated and identified for support and improvement.
    Discussion: While we address specific comments related to the 
implementation timeline for the identification of schools in the 
statewide accountability system in Sec.  200.19, which begins no later 
than the 2018-2019 school year, in order to avoid confusion between the 
year in which a State collects data to calculate its indicators under 
Sec.  200.14 and the year in which a State first differentiates and 
identifies schools under Sec. Sec.  200.18 and 200.19, we have removed 
the reference to a specific year of implementation in Sec.  200.12.
    Changes: We revised Sec.  200.12(a)(1) to strike ``beginning no 
later than the 2017-2018 school year.''
    Comments: One commenter suggested that the Department create, 
through the regulatory process, an education office of the ombudsman 
for each State that would be an independent organization to ensure 
fair, objective, and transparent investigations of complaints and that 
would resolve data and other disputes related to key elements of 
statewide accountability systems, including meaningful differentiation 
of all public schools and identification of schools to implement 
comprehensive or targeted support and improvement plans.
    Discussion: While we recognize that LEAs or schools may 
occasionally dispute accountability determinations under the ESEA, we 
believe that States are best positioned to determine an appropriate and 
timely process for resolving such disputes, which may include 
establishing an ombudsman's office for this purpose without the 
Department requiring this. We decline to change the regulations in this 
area.
    Changes: None.
    Comments: Many commenters wrote either in support of or opposition 
to various aspects of the proposed regulations on statewide 
accountability systems, which are listed in Sec.  200.12, including 
indicators under Sec.  200.14 and

[[Page 86084]]

school improvement plans under Sec. Sec.  200.21 and 200.22.
    Discussion: We appreciate feedback in response to the high-level 
overview of statewide accountability systems in proposed Sec.  200.12. 
However, we address comments on specific components of the 
accountability system in the sections of the proposed regulations that 
address these specific components.
    Changes: None.
Single System
    Comments: A number of commenters wrote generally about the 
framework for a single statewide accountability system; some supported 
and others opposed the creation of a single system. Commenters writing 
in opposition variously objected to the word ``single'' as not 
specifically authorized by the statute, described the proposed 
regulations as an overreach of the Department's authority, and warned 
that the proposal, contrary to its stated purpose, would encourage 
separate State and Federal accountability systems. Other commenters 
asserted that the requirement for a single statewide system would 
prevent States, LEAs, or charter schools from creating their own 
accountability systems, separate from the accountability system 
required under the ESEA, that are better tailored to local needs. 
Another commenter asked the Department to provide guidance on how to 
reconcile conflicting school improvement identifications that may 
result from separate State and ESEA accountability systems. Finally, 
one commenter recommended that the regulations permit flexibility for 
rural schools and districts, suggesting, for example, that rural 
schools be overseen in accordance with State rural school laws, similar 
to the provisions in the statute and Sec.  200.12(a) for public charter 
schools.
    Discussion: We believe that a single statewide system is necessary 
to meet ESEA requirements, particularly for ensuring that annual 
meaningful differentiation and identification of schools is fair, 
consistent, and transparent to the public; and to ensure that all 
schools are treated equitably and held to the same expectations. 
However, the requirement for a single statewide system in Sec.  200.12 
for Federal accountability purposes does not preclude a State, LEA, or 
charter school organization from establishing a separate accountability 
system for its own purposes, including school identification and 
support, should such a system be required under State or local law, or 
desired for other reasons.
    Finally, it is not necessary for the ESEA, as amended by the ESSA, 
to specifically authorize the Secretary to clarify that the statewide 
accountability system must be a single statewide accountability system, 
as this regulatory requirement is being promulgated pursuant to the 
Secretary's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA, as amended by the ESSA, and is fully consistent 
with section 1111(e) of the ESEA, as amended by the ESSA (see 
discussion of the Department's general rulemaking authority under the 
heading Cross-Cutting Issues). Without this clarification, the 
statutory provision on its own is ambiguous and could lead to 
inconsistent or unfair systems of annual meaningful differentiation and 
identification for schools. In addition, the requirement is necessary 
to reasonably ensure compliance with, and falls squarely within the 
scope of, the requirement in section 1111(c)(1) of the ESEA, as amended 
by the ESSA.
    Changes: None.
    Comments: A number of commenters suggested that the Department 
provide flexibility for different accountability systems for certain 
types of schools, particularly alternative schools, to allow for the 
use of measures that are better suited to describe student outcomes and 
school performance in alternative settings. Specifically, commenters 
noted a need to differentiate accountability requirements associated 
with the four-year adjusted cohort graduation rate to allow students in 
non-traditional settings to achieve high school diplomas without time 
constraints. However, other commenters requested that the Department 
maintain strong and uniform accountability measures for all schools, 
including those that serve students with unique and specialized needs.
    Discussion: We agree that certain types of schools, such as 
alternative high schools, schools serving students living in local 
institutions for neglected or delinquent children, including juvenile 
justice facilities, and very small schools, may have unique concerns 
and, in some instances, need additional flexibility that the statewide 
accountability system described in Sec.  200.12 may not be able to 
provide in order to adequately reflect the achievement of the student 
population and overall success of the school. We address this concern 
in response to comments under the subheading Other Requirements in 
Annual Meaningful Differentiation of Schools in Sec.  200.18, which we 
have revised to clarify the differentiation in accountability 
requirements permitted for certain categories of schools that are 
designed to serve special populations of students.
    Changes: None.
    Comments: Several commenters from tribal organizations suggested 
that the Department revise proposed Sec.  200.12 to require specific 
provisions in a State's accountability system for students instructed 
primarily through Native American languages. Another commenter 
representing tribes expressed support for a uniform statewide 
accountability system in Sec.  200.12, noting that the requirements to 
measure student achievement are critical for the more than 90 percent 
of American Indian and Alaska Native students that attend public 
schools supported by SEAs.
    Discussion: We appreciate the comments addressing unique concerns 
affecting American Indian and Alaska Native students. As described in 
Sec.  200.12, a State's accountability system must be based on the 
challenging State academic standards under section 1111(b)(1) of the 
ESEA and academic assessments under section 1111(b)(2). To the extent 
that commenters requested revisions regarding requirements for State 
assessments, these regulations do not address the requirements 
associated with the specific academic assessments that a State must 
administer and use in its statewide accountability system; rather, such 
issues will be addressed through the final regulations on assessment 
for title I, part A. Section 200.12 provides broad parameters for State 
accountability systems and does not address the language of instruction 
used. We agree with the commenter that a single statewide 
accountability system is critical to maintain uniform high expectations 
for all students, including American Indian and Alaska Native students, 
and to close achievement gaps.
    Changes: None.
    Comments: None.
    Discussion: As a technical edit, we have replaced Sec.  
200.12(b)(3) to emphasize that the State's accountability system must 
include all indicators in Sec.  200.14.
    Changes: We have replaced Sec.  200.12(b)(3) with the requirement 
that the State's accountability system must include all indicators in 
Sec.  200.14. We have subsequently renumbered proposed paragraphs 
(b)(3) through (b)(5) to (b)(4) through (b)(6), respectively.
Consideration of Additional Academic Subjects
    Comments: Multiple commenters expressed that State accountability 
systems should allow for consideration of academic subjects in addition 
to reading/language arts and mathematics.

[[Page 86085]]

However, several commenters also expressed support for the emphasis on 
academic achievement and high school graduation in the regulations, 
among the multiple measures of school performance that can be included 
in statewide accountability systems.
    Discussion: Section 1111(c)(4)(A)-(B) of the ESEA, as amended by 
the ESSA, require each State to establish long-term goals and 
measurements of interim progress and an accountability indicator that 
are based on student academic achievement on the State's reading/
language arts and mathematics assessments. Further, section 
1111(c)(4)(C) requires that the Academic Achievement indicator be one 
that receives ``substantial'' weight in the system of annual meaningful 
differentiation of schools. However, we agree with commenters 
emphasizing that a well-rounded education includes subjects beyond 
reading/language arts and mathematics, and this is a valuable 
opportunity for States under the ESEA. Under the ESEA and our 
regulations, a State may include additional subjects in its statewide 
accountability system. We further address this concern in response to 
comments in Sec. Sec.  200.13 and 200.14, which establish the 
requirements for the long-term goals and indicators used in the State 
accountability system.
    Changes: None.
Goals and Measurements of Interim Progress
    Comments: A few commenters requested that the Department strengthen 
the language in proposed Sec.  200.12(b)(2) requiring that the State's 
accountability system be informed by the State's long-term goals and 
measurements of interim progress under Sec.  200.13. One commenter 
requested that the Department clarify in the text of Sec.  200.12 that 
the long-term goals and measurements of interim progress established 
under Sec.  200.13 must be ambitious.
    Discussion: Section 200.12 is intended to provide a high-level 
overview of the requirements for a single statewide accountability 
system; section 200.13 fully addresses the requirements for long-term 
goals and measurements of interim progress. In addition, we are 
revising Sec.  200.14 (accountability indicators) and Sec.  200.18 
(annual meaningful differentiation of school performance) to clarify 
the role of goals and measurements of interim progress in the statewide 
accountability system. We agree with the comment that the regulations 
would be more precise and consistent with the requirements in Sec.  
200.13 with the addition of the word ``ambitious.''
    Changes: We have revised Sec.  200.12(b)(2) to clarify that a 
State's accountability system must be informed by ambitious long-term 
goals and measurements of interim progress.
Charter Schools
    Comments: A number of commenters supported the requirement in Sec.  
200.12 that the statewide accountability system applies to all public 
elementary and secondary schools in the State, including public charter 
schools. Many commenters also supported the additional statutory 
requirement that charter schools be overseen in accordance with State 
charter school law. One commenter noted that including this language 
helps to clarify that, in general, charter schools are subject both to 
ESEA accountability requirements and any additional accountability 
expectations that State charter school authorizers may establish in 
accordance with State charter school law. For example, a charter 
authorizer may revoke or decline to renew a charter based on school 
performance measured against the requirements of the charter even if 
the State is not requiring action based on the ESEA accountability 
requirements.
    Another commenter expressed concern that under the ESEA, as amended 
by NCLB, State charter school laws emphasized the use of high-stakes 
testing to assess school performance; this commenter requested that the 
final regulations support accountability for charter schools based on 
the same multi-measure systems required by the ESEA, as reauthorized by 
the ESSA, for traditional public schools.
    A few commenters called for increased regulation and accountability 
for charter schools.
    Discussion: We appreciate support from commenters stating that the 
regulations help to clarify the applicability of accountability 
requirements for charter schools under both the ESEA and State charter 
school laws, and we believe that it is helpful to further clarify how 
public charter schools are both accountable under the ESEA 
requirements, as well as the performance expectations established under 
State charter school law and the charter school's authorizer. For 
example, we agree with the commenter who noted that charter authorizers 
may still revoke or decline to renew a charter based on school 
performance using the authorizer's established charter review or 
revocation processes, even if the school is in compliance with the ESSA 
accountability requirements, and are revising the final regulations to 
specify that in the case of an authorizer that acts to revoke or non-
renew a school's charter, such action supersedes the requirements to 
implement a comprehensive or targeted support and improvement plan 
under Sec. Sec.  200.21 or 200.22, respectively, recognizing that State 
charter school laws may impose more rigorous interventions than those 
required by the ESEA, as amended by the ESSA. We also agree that public 
charter schools must be included and held accountable in the statewide 
accountability system using the same methodology (including the same 
indicators) that is used with traditional public schools to annually 
differentiate school performance and identify schools for support and 
improvement. While accountability for charter schools must be overseen 
in a way that is consistent with State charter school law, this does 
not exempt charter schools from the State's system of annual meaningful 
differentiation, identification of schools, and implementation of 
support and improvement plans. We have revised Sec.  200.12(b)(5)-(6) 
to reiterate the inclusion of public charter schools in these 
components of the statewide accountability system, with a corresponding 
change to Sec.  200.18(a).
    Changes: We have revised Sec.  200.12(c)(2) to clarify that if an 
authorized public chartering agency, consistent with State charter 
school law, acts to decline to renew or to revoke a charter for a 
particular charter school, the decision of the agency to do so 
supersedes any notification from the State that such a school must 
implement a comprehensive support and improvement or targeted support 
and improvement plan under Sec. Sec.  200.21 or 200.22, respectively. 
We have also revised Sec.  200.12(b)(5)-(6) to further specify that the 
requirements for annual meaningful differentiation and identification 
of all public schools include all public charter schools, and made a 
corresponding change to Sec.  200.18(a).

Section 200.13 Long-term Goals and Measurements of Interim Progress

Academic Achievement
    Comments: Several commenters expressed support for the requirement 
that States set long-term goals and measurements of interim progress 
for improved academic achievement based on grade-level proficiency as 
measured on annual State assessments in mathematics and reading/
language arts.
    Other commenters recommended that the Department give States 
flexibility to use different measures in setting long-term goals and 
measurements of interim progress for academic achievement,

[[Page 86086]]

including individual student growth, metrics that account for student 
achievement at all levels (e.g., average scale scores, proficiency 
indices), or measures that give credit for students moving toward 
proficiency who have not yet attained grade-level proficiency. Some 
commenters also stated that the Department's proposed requirement to 
base academic achievement goals and measurements of interim progress on 
grade-level proficiency ignores section 1111(e)(1)(B)(iii)(I)(bb) of 
the ESEA, as amended by the ESSA, which prohibits the Department from 
prescribing States' numeric long-term goals and measurements of interim 
progress and is inconsistent with Congressional intent to give States 
flexibility in setting their goals.
    Commenters also suggested that the grade-level proficiency 
requirement be retained, but revised to reflect that:
     grade-level proficiency must be aligned with minimum State 
requirements to enroll in college or enter a career; and
     achieving proficiency is the minimum goal for academic 
achievement, and so the phrase ``at a minimum'' should be added before 
every instance of ``grade-level proficiency.''
    Discussion: We appreciate the support of commenters for requiring 
goals based on grade-level proficiency. We believe this requirement is 
both essential to maintain high expectations for all students and 
consistent with the statutory requirements in section 1111(c)(4) of the 
ESEA for the accountability system to be based on the State's 
challenging academic standards, which must include grade-level academic 
achievement standards and may include alternate academic achievement 
standards for students with the most significant cognitive 
disabilities, and in section 1111(c)(4)(A)(i)(I)(aa) which specifies 
that the long-term goals and measurements of interim progress must be 
measured by proficiency on the State's annual assessments, which are 
aligned to these achievement standards. We also note that the statutory 
requirements for challenging academic standards under section 
1111(b)(1)(D) specify that a State's standards must align with entrance 
requirements for credit-bearing coursework in the system of public 
higher education in the State and relevant State career and technical 
education standards, so we do not think it is necessary to restate that 
in this section. We further maintain that for educators, parents, and 
students, but especially, parents and students, information about 
whether students are performing at grade-level lets them know whether 
their student is meeting their State's expectations for their grade.
    In response to commenters who asserted that the proposed 
requirement violates the provision in section 1111(e)(1)(B)(iii)(I)(bb) 
of the ESEA, as amended by the ESSA, we note that the requirement in 
Sec.  200.13(a)(1) for States to set goals for academic achievement 
based on grade-level proficiency is consistent with section 
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, because 
it does not prescribe the numeric long-term goals that a State 
establishes for academic achievement, or the progress that is expected 
for each subgroup toward those goals. Further, the Department has 
determined that the requirement in Sec.  200.13(a)(1)is necessary to 
clarify that the reference to academic achievement as ``measured by 
proficiency'' in section 1111(c)(4)(B)(i)(I) of the ESEA, as amended by 
the ESSA, means academic achievement as measured by the percentage of 
students attaining grade-level proficiency because, without that 
clarification, the statutory language is vague and ambiguous; absent 
clarification, States may have difficulty determining whether they are 
complying with the requirement. Moreover, this clarification of the 
statutory requirement is necessary to reasonably ensure that the 
measure of proficiency used in the Academic Achievement indicator is 
consistent with the requirement in section 1111(b)(2)(B)(ii) that a 
State's academic assessments provide coherent and timely information 
about whether a student is performing ``at the student's grade level.'' 
In addition, given the Department's rulemaking authority previously 
described in the discussion of Cross-Cutting Issues, it is not 
necessary for the statute to specifically authorize the Secretary to 
issue a particular regulatory provision.
    We recognize that States may find value in accounting for students 
who are not yet proficient or performing above grade-level or measuring 
how students are performing against other measures of performance, such 
as student growth. We note that States can set goals for measures other 
than grade-level proficiency for their own purposes, if they so choose, 
and we further discuss in response to comments in Sec.  200.14 how 
progress and performance of students who are below or above the 
proficient level may be included in the Academic Achievement indicator 
or other indicators in the accountability system and how student growth 
is included in the Academic Progress indicator.
    Changes: None.
    Comments: None.
    Discussion: We have determined that the regulations could provide 
greater clarity regarding how States are expected to set long-term 
goals and measurements of interim progress for academic achievement, to 
reflect that those goals are measured by the percentage of students 
attaining grade-level proficiency.
    Changes: We have revised Sec.  200.13(a)(1) to specify that the 
goals and measurements of interim progress are based on the percentage 
of students attaining grade-level proficiency on the State's annual 
assessments.
    Comments: Some commenters requested that the Department require 
States to set goals for academic subjects beyond reading/language arts 
and mathematics, with some asserting that what they described as the 
overly narrow focus on reading/language arts ignores the need for a 
well-rounded education, including access to arts and music education. 
One commenter specifically recommended that States be required to 
establish goals for science, while another commenter wrote that 
proposed Sec.  200.13 over-emphasizes student performance on 
standardized tests.
    Discussion: The proposed regulations are consistent with section 
1111(c)(4)(A)(i)(I)(aa) of the ESEA, as amended by the ESSA, which 
specifies that States must establish long-term goals and interim 
measurements of progress for, at a minimum, academic achievement on the 
State's reading/language arts and mathematics assessments. The statute 
gives States flexibility to establish goals for other subjects if they 
choose, and we do not wish to limit State discretion to address their 
own needs and priorities in this area in the final regulations.
    Changes: None.
Graduation Rates
    Comments: A few commenters requested that the Department clarify 
what is meant by ``more rigorous'' in regards to the requirement that, 
if a State chooses to use an extended-year adjusted cohort graduation 
rate as part of its Graduation Rate indicator, the State must establish 
long-term goals for that extended-year rate that are more rigorous than 
those established for the four-year adjusted cohort graduation rate. In 
particular, two commenters requested clarification that the term ``more 
rigorous'' refers to the graduation rate and not the academic 
requirements

[[Page 86087]]

for graduation (e.g., standards, levels of proficiency).
    Discussion: We generally intend that the ``more rigorous'' goals 
required for extended-year cohort graduation rates be higher than those 
for four-year adjusted cohort graduation rates, but we decline to 
require this in the final regulations in recognition that States have 
flexibility to determine how much higher over a State-determined period 
of time. We also note that, consistent with the statute, our 
regulations for graduation rate goals address only the rates of, and 
not the requirements for, high school graduation.
    Changes: None.
    Comments: None.
    Discussion: We believe the proposed regulations could provide 
greater clarity on the expectation that the ``more rigorous'' 
requirement applies to both the long-term goals and measurements of 
interim progress for any extended-year rate that the State chooses to 
use and are revising Sec.  200.13(b)(2)(ii) to indicate that both long-
term goals and measurements of interim progress should be higher for 
each extended-year rate as compared to long-term goals and measurements 
of interim progress for the four-year rate.
    Changes: We have revised Sec.  200.13(b)(2)(ii) so that the 
requirement for more rigorous expectations applies to both the long-
term goals and measurements of interim progress for each extended-year 
graduation rate.
    Comments: While a few commenters indicated support for State 
discretion to establish long-term goals and measurements of interim 
progress for both four-year and extended-year graduation rates, two 
commenters expressed concern that the four-year rate was over-
emphasized in the proposed regulations, with a potentially negative 
impact on schools that focus on dropout prevention.
    Discussion: We agree that it is important for States to have the 
flexibility within their accountability systems to give credit to 
schools for students who graduate from high school in more than four 
years, and we believe that the final regulations provide such 
flexibility. For example, Sec.  200.14 allows States to measure the 
extended-year adjusted cohort rate as part of the Graduation Rate 
indicator. Further, the regulations are aligned with section 
1111(c)(4)(A)(i)(bb)(AA) of the ESEA, as amended by the ESSA, which 
requires that States establish goals for the four-year adjusted high 
school graduation rate.
    Changes: None.
Expected Rates of Improvement
    Comments: A number of commenters supported the requirement that 
States establish goals to require greater rates of improvement for 
subgroups of students that are lower-achieving and graduate high school 
at lower rates. Commenters indicated that this requirement is important 
for equity, that it is appropriate to focus on progress for the most 
disadvantaged student groups, that it is important to hold schools 
accountable for closing achievement and opportunity gaps, and that this 
requirement appropriately expects teachers, principals, and other 
school leaders to make greater progress with historically underserved 
students.
    However, multiple other commenters opposed this requirement, 
variously stating that students progress at different rates; that no 
subgroup should be expected to progress at a greater rate than any 
other student subgroup; that the requirement is too prescriptive in 
view of Congressional intent to allow States flexibility in 
establishing goals; and that it ignores section 
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, which 
states that nothing in the ESEA, as amended by the ESSA, authorizes the 
Department to prescribe the progress expected from any subgroup of 
students in meeting long-term goals.
    Discussion: We appreciate the support of commenters for the 
proposed regulations on setting goals that require greater improvement 
from lower-performing student subgroups, which we believe are essential 
for clarifying and reasonably ensuring compliance with the requirement 
in section 1111(c)(4)(A)(i)(III) of the ESEA, as amended by the ESSA, 
that a State's goals for subgroups of students who are behind on 
academic achievement and graduation rates take into account the 
improvement needed to make significant progress in closing gaps on 
those measures. We agree with commenters that students make progress at 
different rates, but believe that it is appropriate, with the goal of 
closing achievement gaps in mind, for States to set goals to make 
greater progress with subgroups of students who are further behind.
    Given that the requirement thus falls squarely within the 
Secretary's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA (see discussion of the Department's rulemaking 
authority under the heading Cross-Cutting Issues), it is not necessary 
for the statute to specifically authorize the Secretary to issue this 
particular regulatory requirement. Moreover, the requirement does not 
violate section 1111(e) of the ESEA, as amended by the ESSA, because 
the requirement for States to set goals that require greater rates of 
improvement from lower-performing subgroups is within the scope of and 
consistent with section 1111(c)(4)(A)(i)(III) of the ESEA, as amended 
by the ESSA, which requires that a State's goals for subgroups of 
students who are behind on academic achievement and graduation rates 
take into account the improvement needed to make significant progress 
in closing gaps on those measures. It is also consistent with section 
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, because 
it does not prescribe the numeric long-term goals that a State 
establishes for academic achievement and graduation rates or the 
progress that is expected for each subgroup toward those goals.
    Changes: None.
    Comments: A few commenters requested that the Department further 
clarify what is meant by requiring ``greater rates of improvement'' for 
subgroups of students that are lower-achieving and subgroups of 
students that graduate high school at lower rates. One commenter 
specifically recommended that the Department add language ensuring that 
States take into account how much improvement would be necessary for 
these subgroups of students to meet long-term goals and make 
significant progress in closing statewide proficiency gaps.
    Discussion: We recognize that there are many ways in which States 
could choose to provide for greater rates of improvement and therefore 
decline to make the requested change. Rather, we intend to issue non-
regulatory guidance to support States in setting meaningful long-term 
goals and measurements of interim progress.
    Changes: None.
English Language Proficiency
    Comments: A number of commenters responded to the Department's 
directed question asking whether, in setting ambitious long-term goals 
for English learners to achieve ELP, States would be better able to 
support English learners if the proposed regulations included a maximum 
State-determined timeline and, if so, what that maximum timeline should 
be. Many commenters appreciated the parameters established in the 
proposed regulations for using a uniform procedure to create long-term 
goals based on English learners with similar characteristics, but felt 
that English learners would be better served if the proposed 
regulations also set a maximum State-determined timeline for

[[Page 86088]]

English learners to achieve ELP. The majority of the commenters in 
favor of setting a maximum State-determined timeline supported a 
maximum timeline of five years for English learners to achieve ELP in 
order to best align with existing research. On the other hand, several 
commenters urged the Department not to set a limit on the maximum 
State-determined timeline for English learners to achieve ELP; these 
commenters highlighted the diversity of the English learner population 
as a key reason to avoid setting a uniform maximum timeline, and 
worried that such a timeline would create incentives for States to 
prematurely exit English learners from services. Some commenters 
further believed that limiting the maximum State-determined timeline 
(such as five years) would provide a disincentive for States to adopt 
certain types of evidence-based language instructional education 
programs, such as dual-language programs, in which English learners on 
average achieve proficiency over a longer period of time, but have been 
found to perform better in the academic content areas compared to 
English learners who participated in other types of language 
instructional education programs. In addition, some commenters believed 
that creating a limit on the maximum timeline in the regulations 
constitutes overreach and goes beyond any necessary requirements to 
comply with the statute.
    Discussion: We agree with commenters who stated that the 
heterogeneity of the English learner population would make it difficult 
to set an appropriate maximum State-determined timeline that would be 
the same across all States for all English learners to achieve ELP. 
Additionally, the Department does not wish to create a disincentive for 
States in adopting any types of language instructional education 
programs that have been demonstrated to be effective through research, 
nor do we want to encourage States to cease providing necessary 
services to English learners to avoid exceeding a certain timeline.\1\ 
Although there is a body of research on the time it takes for English 
learners to achieve ELP which would support a maximum State-determined 
timeline of five years, most research identifies a range of years over 
which English learners typically achieve ELP, based on a number of 
factors including the diverse and unique needs of the English learner 
population.\2\ Therefore the final regulations do not establish the 
same maximum State-determined timeline across all States for English 
learners to achieve ELP, but leave that determination to States' 
discretion.
---------------------------------------------------------------------------

    \1\ For more information, including resources and links to 
research, on providing high-quality instruction and supports for 
English learners, please see the Department's non-regulatory 
guidance on English Learners and Title III of the ESEA, as amended 
by the ESSA, found here: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiiiguidenglishlearners92016.pdf.
    \2\ See, for example, Hakuta, K., Goto Butler, Y., & Witt, D. 
(2000). ``How long does it take English learners to attain 
proficiency?'' University of California Linguistic Minority Research 
Institute Policy Report 2000-1; MacSwan, J., & Pray, L. (2005). 
``Learning English bilingually: Age of onset of exposure and rate of 
acquisition among English language learners in a bilingual education 
program.'' Bilingual Research Journal, 29(3), 653-678; Motamedi, 
J.G. (2015). ``Time to reclassification: How long does it take 
English language learners in the Washington Road Map school 
districts to develop English proficiency?'' U.S. Department of 
Education, Institute of Education Sciences; and Slavin, R.E., 
Madden, N.A., Calder[oacute]n, M.E., Chamberlain, A., & Hennessy, M. 
(2011). ``Reading and language outcomes of a five-year randomized 
evaluation of transitional bilingual education.'' Educational 
Evaluation and Policy Analysis, 33 (1), 47-58.
---------------------------------------------------------------------------

    We believe it is appropriate for a State to retain the flexibility 
to adopt a uniform procedure for establishing its own maximum timeline, 
with applicable timelines within that maximum for each category of 
English learners to attain proficiency, based on selected student 
characteristics it chooses from the list in Sec.  200.13(c) and 
research, for purposes of its long-term goals. Thus, we are revising 
the final regulations to require that a State set an overall maximum 
timeline for English learners to achieve ELP on the basis of research 
and describe its procedure and rationale in its State plan, in Sec.  
200.13(c)(2)-(3).
    Additionally, based on the comments received in response to the 
directed question, we believe greater clarity is needed to explain how 
the State-determined maximum timeline interacts with the student-level 
characteristics of English learners included in Sec.  200.13 that are 
used to set timelines and student-level progress targets. More 
specifically, the proposed regulations were not sufficiently clear that 
a State must create and use a consistent method for evaluating selected 
student-level characteristics, including the student's level of ELP at 
the time of a student's identification as an English learner, and, 
based on those characteristics, determine the appropriate timeline for 
the student to attain ELP within the State's overall maximum timeline. 
The applicable timeline for a particular category of English learners 
is then broken down to create targets for progress on the annual ELP 
assessment for that category of English learners. In this way, the 
State's uniform procedure is used to create student-level targets for 
English learners who share particular characteristics. We are revising 
Sec.  200.13(c) to provide greater clarity on this process for setting 
timelines and student-level targets. Further, we note that both the 
proposed and final regulations make clear that an English learner must 
not be exited from English learner services or status until attaining 
English language proficiency, without regard to such timeline.
    Further, we are revising Sec.  200.13(c) to make a clearer 
distinction between the State-determined maximum timeline that informs 
the student-level targets (the topic on which we asked a directed 
question in the NPRM) and the overall timeframe for which the State 
establishes long-term goals. Thus, the final regulations specify that 
the State-level long-term goals and measurements of interim progress 
are based on increases in the percentage of all English learners in the 
State who make annual progress toward ELP (i.e., meet their student-
level targets, based on the uniform procedure described previously). 
For example, a State's goal could be that within three years, 95 
percent of English learners will make sufficient progress, based on the 
student-level targets, on the ELP assessment to achieve ELP within the 
State's expected timeline; the measurements of interim progress might 
be 85 percent and 90 percent in years one and two respectively. That 
State may have timelines that expect English learners who started at 
lower proficiency levels to achieve proficiency within 5-7 years, and 
English learners who start at more advanced levels and at younger ages 
achieving proficiency on shorter timelines. The State will set the ELP 
assessment progress targets based on research and data particular to 
the ELP assessment used; for those English learners at the lower levels 
of proficiency and younger ages, a larger score change or level change 
may typically be expected than for those who started at higher 
proficiency levels and for older students. By tailoring progress 
targets to categories of English learners, the State can realistically 
expect all English learners to show progress.
    Changes: We have revised Sec.  200.13(c) to require that: (1) 
States identify and describe in their State plans how they establish 
long-term goals and measurements of interim progress for increases in 
the percentage of all English learners in the State making annual 
progress toward attaining ELP; (2) States describe in their State plans 
a uniform procedure, applied to all English learners in the State in a 
consistent manner, to establish research-

[[Page 86089]]

based student level targets on which their long-term goals and 
measurements of interim progress are based; and (3) the description 
includes a rationale for determining the overall maximum number of 
years for English learners to attain ELP in its uniform procedure for 
setting research-based, student-level targets, and the applicable 
timelines over which English learners sharing particular 
characteristics are expected to attain ELP within the State-determined 
maximum number of years. We have also revised 200.13(c)(2) to clarify 
that a State's uniform procedure includes three elements: The selected 
student characteristics, including the student's initial level of ELP; 
the applicable timelines (up to a State-determined maximum number of 
years) for English learners sharing particular characteristics to 
attain ELP after the student's identification; and the student-level 
targets that expect English learners to make annual progress toward 
attaining English language proficiency within the applicable timelines 
for such students.
    Comments: Several commenters wrote in support of the particular 
student-level characteristics of English learners included in proposed 
Sec.  200.13(c) that States would use to determine long-term goals and 
measurements of interim progress for English learners. These commenters 
expressed the view that the proposed regulations would provide States 
appropriate flexibility to establish long-term goals that were tailored 
to the diverse needs of the English learner population and that would 
support effective instruction for English learners by ensuring goals 
were meaningful and attainable for students and educators.
    In addition, a number of commenters recommended including 
additional student-level characteristics, including disability status, 
the type of language instruction educational program an English learner 
receives, and other State-proposed characteristics that could have an 
impact on a student's progress in achieving ELP.
    Discussion: We appreciate feedback from commenters on the list of 
student-level characteristics of English learners that may be taken 
into account in establishing long-term goals and measurements of 
interim progress for attaining ELP. While we recognize that research 
has shown that disability status can affect an English learner's 
ability to attain proficiency in English, and that there are cases (as 
noted in Sec.  200.16(c)) where a student's type of disability directly 
prevents him or her from attaining proficiency in all four domains of 
ELP, we note that there are many types of disabilities that have 
minimal or no impact on an English learner's ability to attain ELP and 
such a determination would need to be made on an individualized basis. 
Given this complexity and the difficulty in setting rules that would 
apply consistently to determine when it is, and is not, appropriate to 
set different expectations for attaining ELP for an English learner 
with a disability, we believe it is best to address these issues in 
non-regulatory guidance.
    Similarly, we appreciate that students enrolled in certain types of 
language instructional programs, including dual language programs, may 
take longer to attain ELP, and it was not our intent to discourage LEAs 
or schools from adopting such methods. However, we believe that the 
current list of characteristics in Sec.  200.13 that may be considered 
already includes significant flexibility for States to design 
appropriate and achievable goals and measurements of interim progress 
for English learners. We believe that encouraging implementation of 
high-quality programs that support English learners toward acquisition 
of ELP is better addressed in non-regulatory guidance.\3\
---------------------------------------------------------------------------

    \3\ See, for example, the Department's non-regulatory guidance 
on English Learners and Title III of the ESEA, as amended by the 
ESSA, found here: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiiiguidenglishlearners92016.pdf. Please also see the 2016 
policy issued by the U.S. Department of Health and Human Services 
and U.S. Department of Education Policy Statement on Supporting the 
Development of Children who are Dual Language Learners in Early 
Childhood Programs which addresses bilingualism and nurturing the 
native and home languages of our youngest learners. The statement 
and its recommendations can be found here: https://www.acf.hhs.gov/sites/default/files/ecd/dll_policy_statement_final.pdf.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters wrote in support of the general 
parameters for setting long-term goals included in Sec.  200.13(c), 
noting that they provided States with flexibility to set goals in ways 
that are both ambitious and attainable and recognize the diversity 
within the English learner subgroup. But a few commenters stated that 
the proposed regulations focused too much on attainment of, rather than 
progress toward, achieving English language proficiency, and would 
require States to establish goals for both progress and proficiency 
similar to Annual Measurable Achievement Objectives (AMAOs) under NCLB. 
One commenter recommended using the statutory language of ``making 
progress in achieving'' ELP, rather than ``attaining.'' Another 
commenter was concerned that proposed Sec.  200.13(c) was contrary to 
statutory intent in this area, and objected to imposing any additional 
requirements on States regarding their long-term goals and measurements 
of interim progress for English learners, believing such decisions 
should be made by States.
    Discussion: We appreciate commenters' support for Sec.  200.13(c). 
We also recognize that the statute uses progress towards ``achieving'' 
rather than ``attaining'' English language proficiency, but disagree 
with commenters that there is a meaningful distinction between 
``achieving'' and ``attaining'' ELP. We further disagree with 
commenters who asserted that the proposed requirements for long-term 
goals for English Learners making progress in achieving ELP were too 
prescriptive and overly focused on attainment of ELP. We continue to 
believe that the parameters in Sec.  200.13(c) are essential for 
ensuring that States establish meaningful long-term goals and 
measurements of interim progress that are appropriate for the diverse 
range of English learners found in every State.
    Moreover, we do not agree that the requirements in Sec.  200.13(c) 
would require States to establish attainment goals similar to AMAO-2 
under the ESEA, as amended by the NCLB. Rather, States will set goals 
and measurements of interim progress based on the percentage of 
students attaining their student-level progress targets each year, as 
clarified in revised Sec.  200.13(c)(1)-(2). There is no requirement 
for States to set a goal regarding the number or percentage of English 
learners achieving English language proficiency.
    With respect to the comment that proposed Sec.  200.13(c) was 
contrary to statutory intent in this area, and that any additional 
requirements regarding long-term goals and measurements of interim 
progress for English learners should be left to State discretion, as 
previously described in the discussion of Cross-Cutting Issues, we 
disagree with the argument that a regulation that sets parameters on 
the way a State implements its discretion under the statute is 
inherently inconsistent with the statute. Further, we believe the 
parameters established by Sec.  200.13(c) are necessary to ensure that 
the goals set by States, and timelines underlying those goals, are 
reasonable and will help to ensure compliance with the requirement in 
section 1111(c)(4) that a statewide accountability system be designed 
to improve student academic achievement. The regulations do not dictate 
a specific maximum number of years for any English learner to attain 
proficiency, and do not dictate that a State choose particular student 
characteristics in setting its progress

[[Page 86090]]

timelines, other than initial ELP level. As explained in the NPRM,\4\ 
initial ELP level as a factor in time-to-proficiency is supported by 
substantial amounts of research and should help ensure fair treatment 
of schools with high numbers of English learners in the State 
accountability system.
---------------------------------------------------------------------------

    \4\ See: 81 FR 34540, 34544 notes 1 and 2 (May 31, 2016).
---------------------------------------------------------------------------

    Changes: None.
Other Topics
    Comments: The Department received a variety of supportive comments 
on proposed Sec.  200.13. Several commenters stated that the proposed 
regulations, in general, give States the authority and discretion to 
establish long-term goals and appreciated the flexibility afforded to 
States in this matter. A few commenters indicated that they appreciated 
that the Department emphasized holding all students to the same high 
standards of academic achievement. Commenters also expressed support 
for requiring States to:
     Set academic achievement goals for reading/language arts 
and mathematics separately;
     establish goals for student subgroups as well as for all 
students; and
     use the same multi-year timeline to set long-term goals 
for all student subgroups.
    Discussion: We appreciate the support from commenters for these 
regulations. We agree that it is important for States to have 
flexibility to establish long-term goals and measurements of interim 
progress that are appropriate for their unique contexts. Further, to 
provide additional clarity on these requirements, we are revising Sec.  
200.13 to emphasize the required use of the same multi-year timeline to 
set long-term goals for all students and for each subgroup of students, 
except that the requirement for disaggregation of long-term goals and 
measurements of interim progress does not apply to goals related to 
ELP.
    Changes: We have revised Sec.  200.13 so that the requirement for a 
State to use the same multi-year timeline to achieve its long-term 
goals for all students and for each subgroup of students applies across 
all three areas in which a State must set long-term goals--achievement, 
graduation rates, and ELP--except that the requirement for 
disaggregation of long-term goals and measurements of interim progress 
does not apply to goals related to ELP.
    Comments: A few commenters recommended that the Department adjust 
the language in Sec.  200.13(a)(2)(i) to clarify what it means to apply 
the same standards of academic achievement to all public schools in the 
State, except as provided for students with the most significant 
cognitive disabilities. Several commenters recommended that the 
Department make clear that alternate academic achievement standards for 
students with the most significant cognitive disabilities who take an 
alternate assessment must be based on the same grade-level academic 
content standards as for all other students. One commenter suggested 
that the Department use the phrase ``academic achievement standards'' 
instead of ``standards of academic achievement'' to be more precise in 
meaning and consistent with the statute.
    Discussion: The Department agrees that it is important for the 
language of the regulations to be clear regarding expectations for 
students with the most significant cognitive disabilities, to whom the 
same grade-level academic content standards apply, even though their 
progress may be assessed using an alternate assessment aligned with 
alternate academic achievement standards. However, because the statute 
and applicable regulations on standards and assessments address these 
concerns and because this provision is specifically focused on the 
academic achievement standards, we decline to add language regarding 
grade-level academic content standards in Sec.  200.13. We agree that 
referencing alternate academic achievement standards, as described in 
section 1111(b)(1)(E) of the ESEA, as amended by the ESSA, and changing 
the phrase ``standards of academic achievement'' to ``academic 
achievement standards'' is appropriate and helpful to clarify 
requirements for long-term goals and measurements of interim progress 
as they pertain to students with the most significant cognitive 
disabilities.
    Changes: We have revised the language in Sec.  200.13(a)(2)(i) to 
be clear that the requirements for long-term goals and measurements of 
interim progress for academic achievement against grade-level 
proficiency refer to the State's academic achievement standards, as 
described in section 1111(b)(1) of the Act, and to make clear that the 
performance of students with the most significant cognitive 
disabilities may be assessed against alternate academic achievement 
standards defined by the State consistent with section 1111(b)(1)(E) of 
the ESEA, as amended by the ESSA.
    Comments: One commenter recommended that the Department establish a 
minimum annual percentage increase in proficiency rates necessary to 
meet the requirement that long-term goals and measurements of interim 
progress be ``ambitious.'' Another commenter requested that the 
Department establish parameters for what is meant by an interim 
measurement of progress, without specific suggestions for what the 
parameters should be.
    Discussion: We agree that it will be important for States to 
establish meaningful and ambitious long-term goals and measurements of 
interim progress ambitious, but we believe the final regulations 
provide States with the appropriate level of discretion in this area, 
consistent with the statute. In addition, we intend to issue non-
regulatory guidance on this topic to support States in setting 
meaningful long-term goals and measurements of interim progress.
    Changes: None.
    Comments: A few commenters requested that the Department add 
clarifying language to communicate that scores from assessments given 
in students' native languages should be included in the accountability 
system and publicly reported. Additional commenters suggested that the 
Department clarify that a State's long-term goals and measurements of 
interim progress should pertain, where applicable, to a Native American 
language of instruction for students instructed primarily through 
Native American languages.
    Discussion: We are regulating separately on assessment 
requirements, but we note that the statute provides in section 
1111(b)(2)(F) that States make every effort to develop student academic 
assessments in languages that are present to a significant extent in 
the student population. For assessments that are part of a State's 
assessment system and that are given to English learners in the 
student's native language for reading/language arts, mathematics, and 
science, the results would be included in the State's accountability 
system. Because this is clear under the statute, we do not believe it 
is necessary to add this to the regulations.
    With regard to the comment about instruction through a Native 
American language, nothing in Sec.  200.13 addresses the language of 
instruction, and thus no change is needed.
    Changes: None.
    Comments: One commenter requested that States be required to 
establish a uniform procedure for setting long-term goals and 
measurements of interim progress for students with disabilities, taking 
into account student characteristics and available research, similar to 
what is required of States in

[[Page 86091]]

establishing goals for English learners toward achieving ELP under 
Sec.  200.13(c). This commenter suggested that such a process would be 
beneficial to students with disabilities and help ensure that goals for 
students with disabilities are set in alignment with accountability 
requirements as well as a student's individualized education program 
(IEP).
    Discussion: The Department included the requirement that States 
establish uniform procedures with regards to setting goals for English 
learners toward achieving language proficiency in order to allow 
differentiation of goals for categories of English learners that share 
similar characteristics, including initial level of ELP. We believe 
this is appropriate for English learners, given the varied needs and 
shifting composition of the particular students included in the English 
learner population and for whom the goal is to attain English 
proficiency and exit the program, but do not think it is applicable or 
appropriate to require States to develop such procedures for setting 
goals for children with disabilities who, while their educational needs 
also vary, are entitled to receive special education and related 
services for as long as determined necessary by their IEP teams in 
order to receive a free appropriate public education, and who therefore 
are not routinely exiting the subgroup. Rather than a differentiated 
process based on particular student characteristics, we encourage 
States to consider how they may set long-term goals and measurements of 
interim progress in ways that expect greater rates of progress, and 
result in closing educational achievement gaps, for low-performing 
subgroups, including--if applicable--children with disabilities. We 
intend to issue non-regulatory guidance to assist States in these 
efforts.
    Changes: None.
    Comments: One commenter recommended that the Department make clear 
that failing to meet a State's established measurements of interim 
progress and long-term goals is not a violation of the law.
    Discussion: We do not believe this clarification is necessary, as 
neither the statute nor the final regulations suggest or imply that a 
failure to meet State-determined goals or measurements of interim 
progress would be considered a violation of the law.
    Changes: None.
    Comments: One commenter indicated that the emphasis on on-time 
graduation and grade-level proficiency is contrary to child development 
because some students require more time and support than others to 
achieve the same goal.
    Discussion: We agree with the commenter that students have unique 
needs and require different types and levels of support and amounts of 
time to reach certain goals. However, we disagree that establishing 
goals for grade-level proficiency and high school graduation is 
developmentally inappropriate; such goals set high expectations for 
students and provide valuable information about whether students are 
performing on grade-level and are prepared to graduate from high 
school. Additionally, the regulations align to the requirements in 
section 1111(c)(4)(A) of the ESEA, as amended by the ESSA, that States 
set long-term goals and measurements of interim progress for academic 
achievement based on proficiency on annual assessments and for high 
school graduation rates.
    Changes: None.
    Comments: None.
    Discussion: We have determined that Sec.  200.13(a)(1) and Sec.  
200.13(b)(1) could provide greater clarity on what information States 
have to include in their State plans regarding their long-term goals 
and measurements of interim progress and have revised the regulations 
to make clear that States must identify and describe how they 
established their long-term goals and measurements of interim progress. 
We believe the language in the proposed regulations was vague and that 
without this clarification States may have difficulty determining 
whether they are complying with the requirement.
    Changes: We have revised the language in Sec.  200.13(a)(1) and 
Sec.  200.13(b)(1) to clarify what information regarding long-term 
goals and measurements of interim progress a State must include in its 
consolidated State plan.

Section 200.14 Accountability Indicators

    Comments: One commenter opposed the requirement in proposed Sec.  
200.14(a) that the same measures be used within each indicator for all 
schools, asserting that this requirement would unfairly penalize 
students in alternative schools.
    Discussion: In general, we believe that statewide accountability 
systems must include the same measures within each indicator in order 
to provide fair, consistent, and transparent accountability 
determinations. However, as we discuss later in these final 
regulations, we have revised Sec.  200.18(d)(1)(iii) to incorporate the 
flexibility included in proposed Sec.  299.17 that allows States to use 
a different methodology for identifying for comprehensive support and 
improvement and targeted support and improvement schools that are 
designed to serve unique student populations, including alternative 
schools. Given that flexibility, we decline to make any changes to this 
requirement.
    Changes: None.
    Comments: Several commenters expressed appreciation for the 
Department's clarification in the preamble of the NRPM that States can 
update and modify indicators and measures over time. In particular, 
these commenters noted that such flexibility would allow States to 
include additional indicators as the research basis for such indicators 
matures, consistent with the proposed requirements in section 
200.14(d). One commenter suggested we clarify that States may include 
indicators they plan to use in the future, when data is available, 
within their State plans so that their intentions are transparent.
    Discussion: We appreciate the support we received from commenters 
regarding the flexibility for States to change or add measures to their 
accountability systems over time. As we discussed in the NPRM, we 
recognize that States may want to update their accountability systems 
after receiving additional input or as new data become available. 
However, because States may not yet know which measures they would 
change or add to their accountability system at a later date, we do not 
believe it would be appropriate to require States to include a 
discussion of that topic in their State plans. Therefore, we decline to 
add such a requirement to the final regulations.
    Changes: None.
    Comments: A number of commenters broadly opposed the requirements 
in proposed Sec.  200.14 and recommended the Department give States as 
much flexibility as possible in developing and implementing indicators 
and measures within their statewide accountability systems. Some of 
these commenters believe the proposed requirements reduce flexibility 
for States and LEAs, inconsistent with the ESEA. Other commenters 
asserted that the proposed requirements would limit States to a 
specific number of indicators, contrary to the statutory requirements.
    Discussion: We agree with the commenters that States have 
flexibility in defining the indicators that are most appropriate for 
their context. However, the ESEA, as amended by the ESSA, includes 
specific requirements for each indicator and clearly identifies which 
indicators must be included in the accountability system, and these 
statutory requirements are reflected in the final regulations. We also 
note that

[[Page 86092]]

under the statute, while States may only have a single indicator of 
Academic Achievement, Academic Progress, Progress in Achieving English 
Language Proficiency, and Graduation Rate, they may have more than one 
indicator of School Quality or Student Success, and neither the statute 
nor the proposed regulations limit the number of indicators of School 
Quality or Student Success States may include.
    Changes: None.
    Comments: Some commenters encouraged the Department to require that 
States report disaggregated data on the homeless student subgroup, 
foster student subgroup, or both, on each accountability indicator 
given the unique needs of students in each of those groups.
    Discussion: We agree with the commenters that foster and homeless 
students have unique educational needs and that it may be helpful for 
stakeholders to have data on each group's performance on the 
accountability indicators. To that end, sections 1111(h)(1)(C)(ii) and 
1111(h)(1)(C)(iii)(II) of the ESEA, as amended by the ESSA, require 
that each State report on disaggregated academic achievement and 
graduation rates for students identified as homeless or as a child in 
foster care. However, section 1111(c)(2), which identifies subgroups 
for the purposes of accountability, does not include such students and, 
thus, reporting on those subgroups is not required for the other 
accountability indicators. While States are certainly welcome, and even 
encouraged, to report separately on the performance of homeless and 
foster students on all of the accountability indicators, the Department 
declines to add such a reporting requirement.
    Changes: None.
    Comments: In discussing the requirement for a single summative 
rating in proposed Sec.  200.18, one commenter recommended specifying 
that the rating be based on all accountability indicators, including 
the performance of all students and each subgroup of students on the 
State's long-term goals and measurements of interim progress.
    Discussion: We agree with the commenter that it is critical for the 
annual meaningful differentiation of schools, as described in Sec.  
200.18, to be based on all indicators. Further, we appreciate that this 
suggestion highlighted a statutory requirement that was not 
sufficiently recognized in the proposed regulations. Under section 
1111(c)(4)(B)(i) and (iii) of the ESEA, as amended by the ESSA, 
indicators of Academic Achievement and Graduation Rates must be based 
on a State's long-term goals and measurements of interim progress. 
Accordingly, we believe it is best to address this comment in Sec.  
200.14, rather than in Sec.  200.18, so that we may emphasize this 
relationship in the requirements related to indicators, rather than the 
overall system of annual meaningful differentiation.
    Changes: We have revised Sec.  200.14(b)(1) and (3) to specify that 
the Academic Achievement and Graduation Rate indicators must be based 
on the long-term goals established under Sec.  200.13.
    Comments: A few commenters requested that the accountability 
indicators include specific provisions for students instructed 
primarily through Native American languages, including a disaggregated 
subgroup for such students, and provisions relating to inclusion of 
assessment scores of such students.
    Discussion: We decline to add specific provisions for students 
instructed through a specific language medium or through a particular 
instructional approach. In addition, the student subgroups for the 
indicators are specifically required by the statute (section 1111(c)(2) 
of the ESEA, as amended by the ESSA), and we decline to expand those 
subgroups.
    Changes: None.
Academic Achievement Indicator
    Comments: Numerous commenters recommended clarifying the 
requirement in proposed Sec.  200.14(b)(1)(i) so that it allows for a 
greater range of approaches in how States measure grade-level 
proficiency in the Academic Achievement indicator. Some commenters were 
concerned that the Department's interpretation of ``grade-level 
proficiency'' would mean only the percentage of students that attain a 
proficient score on State assessments would be recognized in the 
indicator, which they feel narrowly focuses States and schools on 
students just below or just above the State's achievement standards for 
proficiency. A few commenters instead recommended modifying the final 
regulation to affirmatively permit States to use a measure of 
achievement that considers student performance at multiple levels of 
achievement in order to measure grade-level proficiency. Some of these 
commenters requested flexibility for States to examine student 
performance at each level of achievement on the State's academic 
achievement standards and create an index that awards partial credit to 
a student who is not yet proficient and additional credit to a student 
who is at an advanced level. Similarly, other commenters suggested 
permitting States to consider a school's average scale score, rather 
than proficiency rates, as the measure of grade-level proficiency in 
the Academic Achievement indicator.
    Discussion: Section 1111(c)(4)(B)(i)(I) of the ESEA, as amended by 
the ESSA, states that the Academic Achievement indicator must be 
``measured by proficiency on the annual assessments required under 
subsection (b)(2)(B)(v)(I),'' and we agree with commenters that further 
clarity on this language is needed. Because proficiency must be 
measured by the State's annual assessments, we believe it is helpful to 
clarify that grade-level proficiency in Sec.  200.14 means, at a 
minimum, a measure of student performance at the proficient level on 
the State's academic achievement standards.
    We share the commenters' concerns that a focus exclusively on 
percent proficient could create an incentive for schools to focus too 
narrowly on students who are just above, or just below, the threshold 
for attaining proficiency and that additional ways of measuring 
proficiency could improve the statistical validity and reliability of a 
State's accountability system. For these reasons, we are revising Sec.  
200.14(b)(1)(ii) to clarify that the scores of students at other levels 
of achievement may be incorporated into the Academic Achievement 
indicator. Under the revisions to Sec.  200.14(b)(1)(ii), a State that 
chooses to recognize schools for the performance of students that are 
below the proficient level and, at its discretion, for the performance 
of students that are above the proficient level within the Academic 
Achievement indicator must do so in a way such that (1) a school 
receives less credit for the score of a student that is not yet 
proficient than for the score of a student that has reached or exceeded 
proficiency, and (2) the credit a school receives for the score of an 
advanced student does not fully mask or compensate for the performance 
of a student who is not yet proficient. For example, a State may award 
each school 0.5 points in the achievement index for every student that 
scores at a level below the proficient level on the State's assessment, 
1.0 points for every student that achieves a score at the proficient 
level, and 1.25 points for every student that scores at levels above 
the proficient level, but may not award 1.5 points for each of these 
more advanced students (as such an approach would fully compensate for 
the performance of a student who is not yet proficient). These 
safeguards allow for the scores of students at other levels of 
achievement

[[Page 86093]]

to contribute toward a school's overall determination, consistent with 
many commenters' concerns, while minimizing the extent to which the 
inclusion of measures of student performance at other levels may 
detract from the required information in the indicator: Proficiency on 
the State assessments. In addition, we note that all States, including 
those that choose to adopt an achievement index, must report 
information on its State and LEA report cards under section 1111(h) of 
the ESEA, as amended by the ESSA, and Sec.  200.32, disaggregated by 
each subgroup of students, on the number and percentage of students 
performing at each level of achievement; this provides another 
safeguard to ensure that information on proficiency on the State 
assessments is clear and transparent.
    Because the calculation of an average scale score treats scores 
above the proficient level the same as scores below the proficient 
level, however, the use of such scores in the Academic Achievement 
indicator could result in an average scale score for the school above 
the proficient level even if a majority of the students in the school 
are not yet proficient. Such an outcome on the Academic Achievement 
indicator would not be consistent with the statutory requirement to 
measure students' proficiency on the State assessments, and is thus 
excluded from the list of additional measures that a State may 
incorporate in its Academic Achievement indicator under new Sec.  
200.14(b)(1)(ii).
    We also note that the ESEA, as amended by the ESSA, offers ample 
flexibility for States to account for student progress and achievement 
at all levels in their statewide accountability systems, particularly 
by using measures of student growth in the Academic Progress indicator 
(for elementary and middle schools) or Academic Achievement indicator 
(for high schools), or in, for example, measures related to students 
taking and succeeding in accelerated coursework or the percentage of 
students scoring at advanced levels on statewide assessments as a 
School Quality or Student Success indicator. We strongly encourage 
States to consider these other ways to help recognize the work schools 
are doing to help low-performing students reach grade-level standards 
and high-performing students in maintaining excellence and support 
schools in increasing access to advanced pathways for all students, 
while maintaining the focus of the Academic Achievement indicator on 
grade-level proficiency based on the State assessments.
    Changes: We have revised and reorganized Sec.  200.14(b)(1)(i)-(ii) 
to clarify that the Academic Achievement indicator must include a 
measure of student performance at the proficient level against a 
State's academic achievement standards, and may also include measures 
of student performance below or above the proficient level, so long as 
(1) a school receives less credit for the performance of a student that 
is not yet proficient than for the performance of a student at or above 
the proficient level; and (2) the credit a school receives for the 
performance of a more advanced student does not fully compensate for 
the performance of a student who is not yet proficient.
    Comments: A number of commenters supported the requirements in 
Sec. Sec.  200.13 and 200.14 that require academic achievement to be 
measured based on grade-level proficiency, as an important check to 
align school accountability requirements with challenging State 
academic standards and to ensure all students and subgroups of students 
are supported in meeting rigorous academic expectations. However, 
several commenters generally opposed the use of student test scores in 
the Academic Achievement indicator, or asserted that the proposed 
requirements would continue an overemphasis on test-based 
accountability systems.
    Discussion: We agree with commenters that it is important for the 
Academic Achievement indicator to include a measure of students' grade-
level proficiency, aligned with the State's challenging academic 
standards, as a way to promote excellence for all students. We also 
believe this provision is critical to fulfill the statutory purpose of 
title I to close educational achievement gaps, and are revising the 
final regulations to make the alignment of grade-level proficiency with 
the State's challenging academic standards clearer.
    While we recognize other commenters' concerns regarding a focus on 
grade-level proficiency on State assessments in the Academic 
Achievement indicator, we disagree that its inclusion is unwarranted. 
First, section 1111(c)(4) of the ESEA requires the accountability 
system to be based on the State's challenging academic standards, which 
includes challenging academic achievement standards for each grade 
level and subject that must be assessed and included in the 
accountability system. Second, section 1111(c)(4)(B)(i) specifies that 
the Academic Achievement indicator must be measured by proficiency on 
the annual assessments required by section 1111(b)(2)(B)(v)(I), which 
must assess student performance against the challenging academic 
achievement standards for the grade in which a student is enrolled, and 
in the case of students with the most significant cognitive 
disabilities, may assess performance against alternate academic 
achievement standards that are aligned with the State's academic 
content standards for the grade in which a student is enrolled. In 
addition, section 1111(c)(4)(C) of the ESEA requires that the Academic 
Achievement indicator receive ``substantial'' weight in the 
accountability system, a distinction not afforded to the indicators of 
School Quality or Student Success, thus demonstrating intent that the 
Academic Achievement indicator based on State assessments receive 
greater emphasis in statewide accountability systems.
    Finally, there are significant opportunities for States to design 
multi-measure accountability systems under the law and the final 
regulations that emphasize student performance and growth at all 
levels, not just proficient and above, as well as non-test-based 
measures that examine whether the school is providing a high-quality 
and well-rounded education. For example, we encourage States to 
consider using measures of student growth on their annual assessments, 
as these measures can identify schools where students that are not yet 
proficient but are making significant gains over time and closing 
achievement gaps. States may also consider adding measures related to 
students taking and succeeding in accelerated coursework as a School 
Quality or Student Success indicator to recognize the work schools are 
doing with high-performing students and encourage schools to increase 
access to and participation in advanced pathways for all students.
    Changes: We have revised and reorganized Sec.  200.14(b)(1)(i) to 
clarify that a grade-level proficiency measure is based on the State's 
academic achievement standards under section 1111(b)(1) of the Act, 
including alternate academic achievement standards for students with 
the most significant cognitive disabilities defined by the State 
consistent with section 1111(b)(1)(E) of the Act.
    Comments: A few commenters supported the requirement in proposed 
Sec.  200.14(b)(1)(i) that a State's Academic Achievement indicator 
equally measure grade-level proficiency on the statewide reading/
language arts and mathematics assessments required under title I of the 
ESEA. Other commenters opposed this

[[Page 86094]]

requirement, with some misunderstanding it as a requirement for 
equivalent assessments in both subjects (despite being based on 
different academic standards) and others asserting that it is 
inconsistent with the statute, including section 
1111(e)(1)(B)(iii)(IV)-(V) of the ESEA regarding the Secretary's 
authority to regulate on the weight of any measure or indicator or the 
specific methodology that States use to meaningfully differentiate and 
identify schools.
    Discussion: We disagree with commenters that the Department lacks 
authority to regulate in this area, given the Secretary's rulemaking 
authority under GEPA, the DEOA, and section 1601(a) of the ESEA, as 
amended by the ESSA, and that these regulations fall squarely within 
the scope of section 1111(c)(4), consistent with section 1111(e) of the 
ESEA, as amended by the ESSA (see discussion of the Department's 
general rulemaking authority under the heading Cross-Cutting Issues). 
Moreover, these regulations are consistent with our rulemaking 
authority given that section 1111(c)(4) requires the statewide 
accountability system to be based on the challenging State academic 
standards for both reading/language arts and mathematics and section 
1111(c)(4)(B)(i)(I) requires the indicator to measure proficiency in 
both subjects. However, we agree with other commenters that the 
proposed requirement to equally measure grade-level proficiency on 
State assessments in reading/language arts and mathematics was 
ambiguous, and that it could be misinterpreted to require these 
assessments to be able to be equated (e.g., by using the same scale), 
even though they must be based on separate academic content and 
achievement standards. In response, we are removing the requirement, 
and believe it is more appropriate to address how reading/language arts 
and mathematics, as measured by the State assessments, may be 
meaningfully considered within the Academic Achievement indicator in 
non-regulatory guidance.
    Changes: We have revised Sec.  200.14(b)(1) to remove the 
requirement for States to ``equally measure'' proficiency in reading/
language arts and mathematics.
    Comments: One commenter suggested the Department replace the slash 
(/) in ``reading/language arts'' with ``or'' to make the language 
consistent with the statutory requirements to assess students in 
reading or language arts.
    Discussion: We appreciate the commenter's point that the ESEA, as 
amended by the ESSA, uses ``reading or language arts'' to describe the 
academic content standards in these subjects. We note that the prior 
authorizations of the ESEA, the NCLB and the Improving America's 
Schools Act of 1994, also used the term ``reading or language arts'' to 
describe standards in these subjects, while the corresponding 
regulations on such acts used the term ``reading/language arts.'' As 
this is consistent with policy and practice for over two decades as a 
way to describe the body of content knowledge in this subject area--and 
we are unaware of significant confusion on this matter--we believe it 
is unnecessary to change ``reading/language arts'' in Sec.  200.14 and 
other sections in the final regulations.
    Changes: None.
    Comments: A couple of commenters supported the requirement to 
calculate the Academic Achievement indicator, based on student 
participation in the State's annual assessments, by using the greater 
of 95 percent of all enrolled students or the number of students that 
participated in such assessments.
    Discussion: We appreciate the commenters' support for the 
clarification in proposed Sec.  200.14(b)(1) of the requirements for 
calculating the Academic Achievement indicator.
    Changes: None.
    Comments: In order to allow States to incorporate measures of 
student growth into their accountability systems, one commenter asked 
the Department to clarify that, consistent with the proposed 
requirements for high schools, an elementary or middle school could 
also include growth on the statewide assessments in its Academic 
Achievement indicator as part of a composite index and to include 
parameters to ensure these growth measures are meaningful and reflect 
student learning.
    Discussion: We agree with the commenter that States should have the 
ability to incorporate student growth into their accountability 
systems, but disagree that growth measures are permissible in the 
Academic Achievement indicator for non-high schools. Section 
1111(c)(4)(B)(i)(II) of the ESEA specifies that, for high schools, 
States may include a measure of student growth on State assessments as 
part of the Academic Achievement indicator. However, the statute 
specifies that for elementary and middle schools, student growth may be 
included in the Academic Progress indicator described in section 
1111(c)(4)(B)(ii) rather than the Academic Achievement indicator. We 
also note that States may include a measure of student growth as part 
of a School Quality or Student Success indicator, consistent with the 
requirements in Sec.  200.14, providing ample opportunity for States to 
include measures of growth in their indicators. Finally, because the 
use of student growth measures is optional and because section 
1111(e)(1)(B)(iii)(III) limits the Department from prescribing specific 
metrics used to measure growth, we believe additional considerations 
for States in measuring student growth are best addressed in non-
regulatory guidance.
    Changes: None.
Academic Progress Indicator
    Comments: Several commenters supported the use of growth in a 
State's accountability system and the flexibility provided around 
growth. One commenter asserted that a State should not be allowed to 
include growth on statewide assessments in its State's system unless or 
until adjustments can be made to account for factors beyond a school or 
teacher's control, including homelessness and poverty.
    Discussion: We appreciate the commenters' support for the inclusion 
for growth in statewide accountability systems, but believe that States 
should have discretion, consistent with the statute, to develop and 
implement their own measures of student growth so long as those 
measures meet the other requirements of Sec.  200.14, including 
validity, reliability, and comparability. The Department declines to 
restrict the growth models that States may use in order to provide 
States flexibility to develop a model appropriate for their State 
context, so long as it is consistent with the other requirements.
    Changes: None.
    Comments: A few commenters opposed what they described as the 
proposed requirement that a State's Academic Progress indicator be 
based on a measure of growth on the statewide assessments in reading/
language arts or mathematics. These commenters noted that the statutory 
language does not require a growth score based on statewide assessments 
for the purposes of calculating the Academic Progress indicator and 
that the Department should not limit States to using growth based 
solely on test scores.
    Discussion: While we appreciate the commenters' concern, the 
requirements do not limit States to using growth based solely on 
statewide assessment results. Under Sec.  200.14(b)(2), a State may 
include either a measure of student growth based on annual reading/
language arts and mathematics assessments or another academic measure 
that meets the requirements of Sec.  200.14(c). For example, a State 
could measure achievement on reading/

[[Page 86095]]

language arts or mathematics on a different assessment or could measure 
achievement in science on the statewide science assessment within the 
Academic Progress indicator. Given this existing flexibility, the 
Department declines to make any additional changes.
    In addition, as noted earlier in these regulations, it is not 
necessary for the statute to specifically authorize the Secretary to 
issue a particular regulatory provision, given the Secretary's 
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the 
ESEA, as amended by the ESSA, and that these regulations fall squarely 
within the scope of section 1111(c) of the ESEA, as amended by the 
ESSA, consistent with section 1111(e) (see discussion of the 
Department's general rulemaking authority under the heading Cross-
Cutting Issues).
    Changes: None.
    Comments: One commenter encouraged the Department to require a 
State electing to include student growth in its Academic Progress 
indicator to use a valid and reliable growth model that adequately 
measures student growth for students with the most significant 
cognitive disabilities taking the alternate assessment. The commenter 
also asked the Department to clarify that States may not use an 
alternative growth measure, such as growth based on meeting IEP goals, 
for such students. Another commenter noted more generally that we 
should recognize individual growth for students with disabilities.
    Discussion: We appreciate the commenters' interest in ensuring that 
students with the most significant cognitive disabilities taking an 
alternate assessment aligned with alternate academic achievement 
standards are appropriately included in any measure within the Academic 
Progress indicator. Section 200.14(a) requires that all indicators 
measure performance for all students and subgroups, including students 
with disabilities, and Sec.  200.14(c) requires that any measure used 
by a State within the Academic Progress indicator be valid, reliable, 
and comparable, and calculated in the same way for all schools across 
the State. Together, these provisions require that States choose a 
measure that includes all students, including those who take an 
alternate assessment based on alternate academic achievement standards. 
Therefore, a State could not use statewide assessment results for some 
students and growth based on meeting IEP goals for other students. 
Given these existing parameters, we decline to add additional 
requirements.
    Changes: None.
    Comments: One commenter recommended that the Department use more 
general language when discussing the proposed Academic Progress 
indicator. The commenter suggested referring to this indicator as 
``Another Indicator'' or ``Growth or Other Academic Indicator,'' which 
the commenter believed aligned more closely with the statutory 
description of this indicator.
    Discussion: The Department believes the term ``Academic Progress'' 
is aligned with the description of the indicator under section 
1111(c)(4)(B)(ii), which requires that such an indicator measure 
academic performance of students in elementary and middle schools and 
allow for meaningful differentiation. Use of the term ``Academic 
Progress'' is also necessary to reasonably ensure a clear distinction 
between the Academic Achievement indicator required by section 
1111(c)(4)(B)(i) and the indicator required by section 
1111(c)(4)(B)(ii). It thus falls squarely within the scope of title I, 
part A of the ESEA, as amended by the ESSA, consistent with section 
1111(e), and the Department's rulemaking authority under GEPA, the 
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (see 
discussion under the heading Cross-Cutting Issues).
    Changes: None.
Graduation Rate Indicator
    Comments: One commenter requested the Department clarify that the 
Graduation Rate indicator may include only four-year and extended-year 
adjusted cohort graduation rates and not other measures related to 
graduation, including dropout rates or completer rates. Another 
commenter recommended allowing alternative measures or indicators, such 
as a high school completion indicator, in order to recognize schools 
that help students complete alternate pathways in more than four years.
    Discussion: Consistent with section 1111(c)(4)(B)(iii) of the ESEA, 
as amended by the ESSA, the Graduation Rate indicator may only include 
the four-year adjusted cohort graduation rate, and, at the State's 
discretion, any extended year adjusted cohort graduation rates the 
State uses, consistent with the requirements in Sec.  200.34. 
Consequently, the regulations do not permit a State to include other 
measures related to high school completion, including dropout or 
completer rates or alternate diplomas based on high school equivalency, 
in this indicator, and we believe this is accurately reflected in Sec.  
200.14(c)(3). We note that States would have discretion to include 
other measures of high school completion in a School Quality or Student 
Success indicator, if such measures met all applicable requirements in 
Sec.  200.14.
    Changes: None.
Progress in Achieving English Language Proficiency Indicator
    Comments: A few commenters expressed support for the provisions 
pertaining to the Progress in Achieving English Language Proficiency 
indicator in proposed Sec.  200.14(b)(4), including the requirement 
that the indicator take into account a student's initial ELP level and, 
at a State's discretion, the allowable student-level characteristics 
described in Sec.  200.13(c), consistent with the State's uniform 
procedure for establishing long-term goals and measurements of interim 
progress for ELP.
    Discussion: We appreciate the commenters' support and are 
renumbering and revising Sec.  200.14(b)(4)(ii) to better align with 
the final requirements in Sec.  200.13 related to the State-determined 
timelines, including the State-determined maximum number of years, for 
each English learner to attain ELP after their initial identification 
as an English learner, which includes consideration of a student's 
initial level of ELP and may include additional student-level factors 
as described in Sec.  200.13.
    Changes: We have revised Sec.  200.14(b)(4) to better align with 
the final requirements in Sec.  200.13(c) for considering student--
level characteristics of English learners and determining applicable 
timelines, within a State-determined maximum number of years, for each 
English learner to attain ELP as the basis for setting long-term goals 
and measurements of interim progress in setting.
    Comments: Several commenters suggested that multiple measures, 
specifically those not based on performance on the State's annual ELP 
assessment, be used to calculate the Progress in Achieving English 
Language Proficiency indicator in order to better align with the 
criteria that many States use to exit students from English learner 
status.
    Discussion: The ESEA, as amended by the ESSA, states that the 
Progress in Achieving English Language Proficiency indicator must be 
measured by the assessments described in section 1111(b)(2)(G) (the 
annual ELP assessment) for all English learners in grades 3-8 and once 
in high school, with progress measured against the ELP assessment 
results from the previous

[[Page 86096]]

grade. The Department does not have discretion to permit additional 
measures beyond the State's ELP assessment to be used to calculate this 
indicator. However, we are clarifying the final regulations to specify 
that a State may, at its discretion, measure the progress of English 
learners in additional grades toward achieving English language 
proficiency on the State's ELP assessment in the indicator, 
particularly given the large and growing number of English Learners 
enrolled in the early grades.
    Changes: We have revised Sec.  200.14(b)(4) to clarify that the 
Progress in Achieving English Language Proficiency indicator must 
measure English learner performance on the State's annual ELP 
assessment required in ``at least'' each of grades 3 through 8 and in 
grades for which English learners are assessed under section 
1111(b)(2)(B)(v)(I)(bb) of the ESEA, as amended by the ESSA.
    Comments: Several commenters supported the requirement that, for 
calculating the Progress in Achieving English Language Proficiency 
indicator, a State must use an objective and valid measure of progress 
on the State's ELP assessment. However, other commenters opposed this 
requirement, arguing that States should have greater flexibility when 
determining the best measure to determine an English learner's 
progress.
    Discussion: The Department agrees that States should have 
flexibility to determine which measure of progress on the ELP 
assessment to use for calculating performance on the Progress in 
Achieving English Language Proficiency indicator. However, we believe 
that the requirement that any measure a State selects be objective and 
valid is critical to ensuring that a State's accountability system 
fairly and meaningfully includes the progress of English learners. We 
maintain that the final regulations provide sufficient flexibility to 
States in developing this indicator, while upholding critical 
parameters that will help States effectively support English learners. 
We therefore agree with commenters that valid and objective measures 
must be used in the Progress in Achieving English Language Proficiency 
indicator and decline to make changes.
    Changes: None.
    Comments: One commenter attested that proposed Sec.  200.14(b)(4) 
conflicts with proposed Sec.  200.13(c), because the former allows a 
State to include attainment of proficiency within the Progress in 
Achieving English Language Proficiency indicator, while the latter 
requires that a State's long-term goals and measurements of interim 
progress expect that all English learners attain proficiency within a 
State-determined period of time. Another commenter recommended that all 
references to attainment of ELP be struck in the final regulations.
    Discussion: The Department is revising Sec.  200.13(c) to clarify 
how the attainment of English language proficiency factors into a 
State's long-term goals and measurements of interim progress, as 
described in response to comments on Sec.  200.13(c). Accordingly, we 
are revising Sec.  200.14(b)(4) to better align with those 
requirements, such as by clarifying in Sec.  200.14(b)(4)(ii) that the 
measures in this indicator must be aligned to the applicable timelines 
for each English learner to attain proficiency after their initial 
identification as an English learner, within a State-determined maximum 
number of years. Further, we note that the provision in Sec.  
200.14(b)(4)(iii) is permissive in that States may, but are not 
required to, include a measure of proficiency in setting the indicator. 
We also disagree that the proposed requirements inappropriately provide 
discretion for States to measure attainment of ELP and believe that a 
measure of attaining ELP, if a State chooses to include one, can be 
complementary to the information on progress that is required in the 
indicator, providing schools additional information about how they are 
supporting the diverse range of English learners found in their 
communities. Therefore we are maintaining this discretion for States in 
Sec.  200.14(b)(4)(iii).
    Changes: We have revised Sec.  200.14(b)(4)(ii) to better align 
with Sec.  200.13 and clarify that the measures in this indicator must 
be consistent with the applicable timelines for each English learner to 
attain proficiency after the student's initial identification as an 
English learner, within the State-determined maximum number of years.
    Comments: A few commenters suggested that the Department require 
that States aggregate the results of English learners on the ELP 
assessment at the school level (i.e., not at each grade level) for the 
purposes of meeting the State's minimum n-size and calculating 
performance on the Progress in Achieving English Language Proficiency 
indicator.
    Discussion: The Department agrees with the commenters' goal to 
ensure that the assessment results of as many English learners as 
possible are included when calculating performance on the Progress in 
Achieving English Language Proficiency indicator. However, we do not 
believe that the statute allows the Department to require States to 
apply their minimum n-sizes at the school level. We note that States 
may average data across grades and school years under Sec.  200.20(a), 
summing the number of students with available data in order to meet the 
State's minimum n-size and ensure appropriate school-level 
accountability for student subgroups, and we encourage States to 
consider this practice as a way to maximally include English learners 
(as described further in response to comments we received on Sec. Sec.  
200.17 and 200.20).
    Changes: None.
    Comments: One commenter did not support the reference to student 
growth percentiles in proposed Sec.  200.14(b)(4)(ii) as an example of 
a potential measure for the Progress in Achieving English Language 
Proficiency indicator that would be valid and objective. The commenter 
attested that student growth percentiles may be an inappropriate 
measure for older, recently arrived English learners.
    Discussion: We continue to believe that student growth percentiles 
are an appropriate example of a measure for the Progress in Achieving 
English Language Proficiency indicator and note that States have final 
discretion over the measure or measures selected for use in this 
indicator, so long as they meet all applicable statutory and regulatory 
requirements. However, we are revising Sec.  200.14(b)(4)(i) to further 
clarify our intent that other methods of measuring progress are also 
permitted, so long as they assess progress toward achieving ELP for an 
English learner from the prior year to the current year.
    Changes: We have revised Sec.  200.14(b)(4)(i) to indicate that the 
objective and valid measures of progress for English learners toward 
ELP are based on students' current year performance on the ELP 
assessment as compared to the prior year.
    Comments: One commenter stated that requiring the measurement of 
the Progress in Achieving English Language Proficiency indicator on an 
annual basis is inconsistent with the statute.
    Discussion: Annually measuring performance on the Progress in 
Achieving English Language Proficiency indicator is fully consistent 
with section 1111(c)(4)(B) of the Act, which requires all indicators to 
be annually measured for all students and subgroups of students. The 
exception included in the statute, which may have misled the commenter, 
is not an exception to the requirement for annual measurement; rather, 
it is an exception to the requirement for disaggregation. The indicator 
for Progress in Achieving

[[Page 86097]]

English Language Proficiency is based only on the English learner 
subgroup and is not required to be further disaggregated by the other 
categories of students described in Sec.  200.16(a)(2). We have revised 
Sec.  200.14(a)(1) to clarify this statutory exception to the 
requirement for disaggregation of indicators.
    Changes: We have revised Sec.  200.14(a)(1) and (c)(3) to specify 
that all indicators must be disaggregated for each subgroup, with the 
exception of the Progress in Achieving English Language Proficiency 
indicator.
    Comments: One commenter recommended that the Department require 
that States use a measure in the Progress on Achieving English Language 
Proficiency indicator based on reducing the number of students who are 
long-term English learners in middle school and high school.
    Discussion: We appreciate the commenter's suggestion, but note that 
requiring additional measures within this indicator for English 
learners, particularly those that are not inclusive of all English 
learners and only include the progress of a subset of English learners, 
would be inconsistent with section 1111(c)(4)(B)(iv) of the ESEA, as 
amended by the ESSA.
    Changes: None.
School Quality or Student Success Indicator
    Comments: Several commenters supported the inclusion of 
requirements for School Quality or Student Success indicators in the 
proposed regulations, generally expressing appreciation for a more 
holistic approach to accountability under the ESSA that looks at 
indicators beyond test scores and graduation rates. A number of 
commenters continued to be concerned that accountability systems at the 
State level were focused solely on assessment results and graduation 
rates, and one commenter was concerned that States were only required 
to include one measure beyond standardized tests.
    Some commenters generally recommended that States be given broad 
flexibility in developing and implementing indicators of School Quality 
or Student Success within their new statewide accountability systems.
    Discussion: We agree with commenters that the inclusion of the 
School Quality or Student Success indicator(s) in the statewide 
accountability systems required by the ESEA, as amended by the ESSA, 
presents an opportunity for States to develop robust, multi-measure 
accountability systems that help districts and schools ensure each 
student has access to a well-rounded education and that take into 
account factors other than test scores and graduation rates in 
differentiating school performance. Given that States must include 
indicators beyond academic achievement and graduation rates, we 
disagree with commenters who asserted that accountability systems are 
solely focused on these factors. We recognize that the statute requires 
only one School Quality or Student Success indicator, but anticipate 
that most States will take advantage of statutory flexibility to 
develop or adopt multiple indicators, particularly in view of the 
examples included in the statute itself.
    Changes: None.
    Comments: Some commenters suggested that the Department add a 
requirement that States hold schools accountable for providing students 
with access to programs that address particular needs of students, 
including access to arts, music, and world language programs, in order 
to support development of the whole child.
    Discussion: We share the commenters' interest in ensuring that all 
students receive a well-rounded education that will prepare them for 
success beyond the classroom. However, the Department is statutorily 
prohibited from mandating curricula either directly or indirectly, as 
such decisions are a State and local responsibility.
    Changes: None.
    Comments: One commenter opposed the use of ``Standard Core'' 
measures within the School Quality or Student Success indicator because 
such measures lacked empirical evidence.
    Discussion: While we appreciate the commenter's concern about the 
use of measures that lack evidence, we are not clear which measures the 
commenter is referencing; therefore, we cannot respond to the comment.
    Changes: None.
    Comments: One commenter raised specific questions about whether, if 
a State used a survey to collect data on its School Quality or Student 
Success indicator, the State must survey all students or whether the 
data must be reflective of all students, or only those that are full 
academic year students. Additionally, the commenter sought clarity 
about whether a State could choose to measure only some grades within a 
range, so long as all schools in the State had one or more of the 
grades to be measured. For example, the commenter wanted to know if a 
State could measure a School Quality or Student Success indicator for 
grades kindergarten, 3, and 5, instead of each grade in a kindergarten-
5 school.
    Discussion: We appreciate the commenter's request for clarity about 
implementation of the specific indicators and measures within the 
statewide accountability system, but believe that non-regulatory 
guidance is a more appropriate way to address such questions. 
Generally, the ESEA, as amended by the ESSA, and Sec.  200.14 of the 
regulations recognize that some indicators will not include all grades 
in a school. For example, the Graduation Rate indicator only includes 
the results of students that are part of the cohort of students 
graduating in a given year, and the Academic Achievement indicator only 
includes the results of students taking assessments in specific grades 
(i.e., grades 3-8 and one grade in high school). Therefore, it does not 
seem unreasonable that an indicator of School Quality or Student 
Success would only include the results of a specific grade. For 
example, a State may choose to use as an indicator, for middle schools, 
the percentage of eighth grade students that have already received 
credit for a course such as Algebra I. To the specific question about 
whether States must include only those students who are full academic 
year students in measuring the School Quality or Student Success 
indicator, section 1111(c)(4)(F) of the ESEA, as amended by the ESSA, 
allows a State to exclude the performance of students who do not attend 
the same school within an LEA for at least half of a school year on the 
Academic Achievement, Academic Progress, Progress in Achieving English 
Language Proficiency, and the School Quality or Student Success 
indicators for accountability purposes. However, all students should be 
included for the purposes of reporting performance on State and LEA 
report cards under Sec. Sec.  200.30 and 200.31.
    Changes: None.
    Comments: Some commenters suggested the Department require States 
to undertake stakeholder consultation specific to the development of 
meaningful indicators of School Quality or Student Success. For 
example, one commenter recommended the Department require States to 
convene summer and other out-of-school partners for input, because 
these stakeholders have expertise in supporting and measuring students' 
social-emotional development. Other commenters recommended that States 
be required to consult with the diverse community of professionals that 
contribute to student success, including instructional support staff.
    Discussion: We agree with commenters that States should engage in 
robust and meaningful consultation with diverse stakeholders related to 
the development or adoption of the State's

[[Page 86098]]

indicators of School Quality or Student Success. In fact, the Secretary 
issued a Dear Colleague Letter to States on June 22, 2016, to emphasize 
the importance of early and meaningful stakeholder engagement.\5\ 
States should be working now with a broad array of stakeholders on 
formulating new statewide accountability and support systems. 
Additionally, under Sec. Sec.  299.13 and 299.15, States are required 
to consult with many stakeholders, including teachers, principals, 
other school leaders, paraprofessionals, specialized instructional 
support personnel, and organizations representing such individuals, as 
well as community-based organizations, in the development of the State 
plan. One component of that plan is a description and information about 
which indicators the State plans to use in its statewide accountability 
system, including School Quality or Student Success indicators. The 
Department encourages States to engage stakeholders meaningfully in the 
development of State plans, including School Quality or Student Success 
indicators, and believes that existing consultation and State plan 
requirements provide sufficient opportunity for input on State 
selection of these indicators; therefore, we decline to add further 
requirements specific to this category of indicators to the final 
regulations.
---------------------------------------------------------------------------

    \5\ See: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
---------------------------------------------------------------------------

    Changes: None.
    Comments: A number of commenters suggested the Department require 
States to hold schools accountable for a wide range of specific 
indicators of School Quality or Student Success. For example, 
commenters suggested that States be required to hold schools 
accountable for the presence of wrap-around services, access to 
preschool, and career and technical programs.
    Other commenters suggested the Department provide additional 
examples of measures and indicators of School Quality or Student 
Success within the regulatory requirements but not require States to 
use specific indicators. For example, these commenters suggested that 
the Department highlight health-based measures, specific measures of 
school climate and school discipline, and measures of participation in 
advanced or gifted programs.
    Other commenters expressed interest in examples, which could be 
made available either in regulation or non-regulatory guidance, of 
valid and reliable indicators that could measure School Quality or 
Student Success and support equity and excellence, as well as tools 
that may be used to measure performance on these indicators (e.g., 
existing student survey tools).
    Discussion: We appreciate the strong interest of commenters in 
requiring or highlighting a wide range of measures that States could 
include in their indicators of School Quality or Student Success, as 
well as the recognition that States likely will need assistance in 
selecting high-quality indicators. However, we believe that requiring 
the inclusion of specific measures would be inconsistent with the 
statute, and we believe that non-regulatory guidance is a more 
appropriate vehicle for offering additional examples and tools to help 
States select valid, reliable, and comparable indicators of School 
Quality or Student Success. Therefore, we decline to include additional 
examples of indicators of School Quality or Student Success, beyond the 
list in Sec.  200.14(b)(5), which includes only those examples provided 
in section 1111(c)(4)(B)(v) of the ESEA, as amended by the ESSA. We 
plan to issue non-regulatory guidance that will provide additional 
examples of indicators of School Quality or Student Success that States 
may choose to include in statewide accountability systems.
    Changes: None.
    Comments: Several commenters provided feedback or recommendations 
related to the examples of School Quality or Student Success indicators 
the Department listed in the preamble of the NPRM, with some expressing 
concern that the examples could preclude or discourage the use of other 
indicators and other commenters highlighting specific concerns or 
drawbacks with the examples and suggesting alternatives.
    Discussion: While we appreciate the feedback provided by commenters 
on such examples and will consider this feedback in any future guidance 
on the selection and implementation of indicators of School Quality or 
Student Success, the examples were provided in the preamble of the NPRM 
and not in the regulatory requirements. Therefore, the Department 
declines to make any regulatory changes based on this feedback.
    Changes: None.
    Comments: Several commenters requested that the Department require 
States to define and measure school climate within specific parameters 
if the State chooses to use school climate as an indicator of School 
Quality or Student Success. For example, some commenters encouraged the 
Department to define positive school climate and safety and offer 
multiple ways of measuring data, including student surveys and through 
the use of school discipline data.
    Discussion: We appreciate the commenters' efforts to encourage the 
selection and use of meaningful, high-quality, and readily available 
measures of school climate in States that use such measures in one or 
more indicators of School Quality or Student Success. We believe that 
decisions about which measures to include are best made at the State 
level and encourage States to meaningfully engage stakeholders in 
considering them.
    Changes: None.
    Comments: A few commenters wanted to ensure that, in establishing 
and collecting data on indicators of School Quality or Student Success, 
States do not collect data regarding student social emotional factors, 
beliefs and behaviors, or other information beyond the scope of the 
school's purview, or use such information for accountability purposes. 
Another commenter suggested the Department clarify that indicators 
should not require any additional assessments beyond what is already 
required by law in reading and math.
    Discussion: We appreciate the commenters' concern that a State may 
establish and develop an indicator of School Quality or Student Success 
that will require the State to collect additional data, consistent with 
the statutory requirement to measure and report on this indicator. 
States must still meet the requirements for protecting personally 
identifiable information described in the statute and under Sec.  
200.17. Because States are best positioned to determine whether an 
additional assessment or tool is needed to determine a student's 
performance on its particular School Quality or Student Success 
indicator(s), we decline to limit State discretion in this area.
    Changes: None.
    Comments: Many commenters provided feedback on the proposed 
requirement in Sec.  200.14(d) that any measure used within a State's 
indicators of Academic Progress and School Quality or Student Success 
be supported by research that performance or progress on such a measure 
is likely to increase student achievement, or at the high school level, 
graduation rates. Some suggested eliminating the requirement that the 
School Quality or Student Success indicator be supported by such 
research, because it would prevent States from using measures of school 
climate or safety, parent engagement, or other measures that they 
believe may not be directly linked to

[[Page 86099]]

academic achievement. These commenters also were concerned that the 
requirement restricts State flexibility to choose appropriate 
indicators, results in a continued emphasis on test-based 
accountability, is contrary to the ESSA's inclusion of multiple 
indicators beyond assessment results, and goes beyond the authority 
granted to the Secretary. Another commenter noted that the statute did 
not include an evidence requirement for these indicators as it did 
other parts of the statewide accountability system. A few commenters 
also asserted that the proposed requirement violated sections 
1111(e)(1)(B)(iii)(IV) and (V) of the ESEA, as amended by the ESSA.
    Other commenters supported the proposed requirement because it 
ensures that measures within each indicator are likely to close 
educational achievement gaps, consistent with the purpose of title I of 
the ESEA. Of those commenters that supported the requirement, one 
recommended adding that the indicators should not only be linked to 
student achievement, but would also be appropriate for accountability 
purposes. Some commenters supported the requirement but recommended 
modifying the regulations to allow States to demonstrate that proposed 
measures used in indicators of School Quality or Student Success are 
supported by research that performance or progress on such measures is 
likely to increase at least one of a variety of outcomes beyond student 
achievement and graduation rates, including student educational 
outcomes, college completion, postsecondary or career success, 
employment or workforce outcomes, civic engagement, military readiness, 
student access to and participation in well-rounded education subject 
areas, or student learning and development. Finally, one commenter 
suggested that States be required to demonstrate that the indicator 
they select to use in middle school is linked to student achievement or 
graduation rates because waiting until high school to focus on 
indicators that are linked to graduation is too late.
    Discussion: The requirement that measures used for indicators of 
Academic Progress and School Quality or Student Success be supported by 
research demonstrating a link to increased student achievement was not 
intended to limit such measures to those that improve State assessment 
results. Rather, our intention was to include a wide variety of 
measures of student learning such as grade point average, course 
completion and performance, or credit accumulation. We maintain that a 
requirement linking indicators of School Quality or Student Success to 
student outcomes is critical to fulfill the goal of title I to close 
educational achievement gaps and to reasonably ensure compliance with 
the more specific requirements in section 1111(c)(4) that the State's 
accountability system should improve ``student academic achievement.'' 
Accordingly, this requirement falls squarely within the scope of title 
I, part A of the ESEA, as amended by the ESSA, consistent with section 
1111(e) and is consistent with the Department's rulemaking authority 
under GEPA, the DEOA, and section 1601(a) of the ESEA, as amended by 
the ESSA.
    Further, these requirements do not contravene the provisions in 
sections 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the 
ESSA, because they do not prescribe either the weight of any measure or 
indicator or the specific methodology that States must use to 
meaningfully differentiate and identify schools.
    However, we recognize that many measures may be supported by 
research demonstrating a positive impact on a broader array of student 
outcomes that are related to college and career readiness and are 
revising Sec.  200.14(d) accordingly.
    Changes: We have revised Sec.  200.14(d) to provide States with 
additional flexibility to demonstrate that the Academic Progress and 
School Quality or Student Success indicators are supported by research 
that performance or improvement on such measures is likely to increase 
student learning, like grade point average, credit accumulation, or 
performance in advanced coursework, or, for measures within the 
indicators at the high school level, graduation rates, postsecondary 
enrollment, postsecondary persistence or completion, or career 
readiness.
    Comments: None.
    Discussion: In revising the requirement under Sec.  200.14(d), 
consistent with the discussion directly above, we determined that an 
additional change would clarify the requirement in order to ensure 
States can comply with the requirements in 1111(c) of the ESEA, as 
amended by the ESSA, and Sec.  200.14. In order to more closely align 
with the purpose of the accountability system and to meaningfully 
ensure that measure used within the Academic Progress and School 
Quality or Student Success indicators are likely to increase student 
learning, consistent with the previous discussion, we are clarifying 
that a State must demonstrate that each of these indicators is 
supported by research that high performance or improvement on such 
measures is likely to increase student learning, or for measures within 
indicators at the high school level, graduation rates, postsecondary 
enrollment, postsecondary persistence or completion, or career 
readiness.
    Changes: We have revised Sec.  200.19(d) to clarify that each 
indicator of Academic Progress and School Quality or Student Success 
must be supported by research that ``high'' performance or improvement 
on such measures is likely to increase student learning.
Other Indicator Requirements
    Comments: A few commenters recommended that the Department include 
additional requirements in the final regulations related to the 
selection and use of accountability indicators, including requirements 
related to ensuring that measures are valid and reliable for the 
purposes for which they are being used and are developmentally 
appropriate. Another commenter encouraged the Department to avoid 
further defining comparability due to pending innovations in how 
comparability might be demonstrated.
    One commenter offered specific guidance for the Department and 
States to consider in identifying or selecting research-based, non-
academic, or non-cognitive School Quality or Student Success 
indicators.
    Discussion: We appreciate the commenters' request for further 
clarification around the requirements for accountability indicators. We 
believe it will be important to carefully consider the validity, 
reliability, and comparability of each State's indicators within the 
broader context of its statewide accountability system through our 
State plan review process and corresponding peer review, but we decline 
to add new regulatory requirements in this area. We will consider this 
input in the context of non-regulatory guidance.
    Changes: None.
    Comments: Some commenters opposed the requirement in proposed Sec.  
200.14(c)(2) that States measure each indicator in the same way across 
all schools, except that the indicators of Academic Progress and School 
Quality or Student Success may vary by grade span. One commenter was 
concerned that this requirement dilutes local flexibility to select 
measures that may be more appropriate given a school's local context. 
Other commenters particularly appreciated the flexibility to vary 
certain indicators by grade span, because they believed this would 
allow States to use a broader array of

[[Page 86100]]

indicators rather than only indicators that were relevant to all 
grades.
    Discussion: While we appreciate the concern that this does not 
provide States with an opportunity to vary indicator measurement across 
schools broadly, we believe that in order to ensure indicators are 
comparable and that accountability determinations are fair and 
equitable across schools and districts, the measures within those 
indicators must be measured in the same way. The regulations provide 
States with flexibility beyond that in the statute--to vary the 
Academic Progress indicator across grade spans--but the Department 
declines to allow States to measure performance on indicators 
differently across schools or districts, or to permit States to adopt a 
menu of measures from which districts can choose to use within an 
indicator.
    Changes: None.
    Comments: Several commenters strongly supported the requirement in 
proposed Sec.  200.14(c)(3) that States disaggregate performance on 
each indicator by student subgroup, citing the need for such 
disaggregation for transparency in reporting, identification of schools 
with consistently underperforming subgroups for targeted support and 
improvement, and alignment with the statutory requirements for 
indicators. One commenter suggested clarifying that each indicator 
should be disaggregated by individual student subgroup and reflect 
actual student experience. That commenter was concerned that, as 
drafted, the regulations would permit a school to say, for example, 
that all members of a particular subgroup had access to AP courses, 
even if no members of that group were actually enrolled in AP courses. 
A number of commenters opposed the requirement and recommended the 
Department remove or modify this provision. In particular, many 
commenters were concerned that the requirement to disaggregate each 
indicator of Student Quality or Student Success would preclude a State 
from using indicators that cannot be disaggregated, such as teacher 
mentoring programs, educator engagement or school climate measures 
collected through an anonymized survey, and student access to resources 
such as dual enrollment programs, specific course sequences, or school 
counselors. Commenters were concerned about the latter because it would 
not adequately reflect differences among subgroups in actual 
participation in or use of such resources. Some commenters were 
concerned with the validity and reliability of these indicators at the 
subgroup level. One commenter suggested that a State should be required 
to disaggregate one indicator of School Quality or Student Success, but 
not each such indicator. Another commenter asked for clarification 
about whether the proposed regulations would require a State using a 
survey to collect demographic information for each participant.
    Discussion: We appreciated hearing from commenters who supported 
the requirement to disaggregate results on each indicator, and we agree 
that this requirement is vitally important to ensuring equity and 
meeting other statutory requirements related to indicators. For too 
long, the performance of individual subgroups was hidden within State 
accountability and reporting systems, and the ESSA has maintained a 
focus on illuminating the performance of each subgroup by requiring in 
section 1111(c)(4)(B) that States measure each indicator for all 
students and separately for each subgroup of students. Additionally, in 
order to identify schools with consistently underperforming subgroups 
of students for targeted support and improvement, the State must 
consider the performance of individual subgroups based on each 
indicator. We understand that this requirement to disaggregate results 
on each indicator may limit to some degree a State's selection of 
indicators for its statewide accountability system, but the reasons for 
such disaggregation are compelling, and the ESSA requires this 
disaggregation. Therefore, we decline to make any changes. The only 
exception to this requirement, as discussed previously, is that the 
Progress in Achieving English Language Proficiency indicator need not 
be disaggregated by student subgroup because it is measured for only 
one subgroup: The English learner subgroup.
    Changes: None.
    Comments: While some commenters supported the proposed requirement 
in Sec.  200.14(c)(4) that a State cannot use a measure more than once 
in its statewide accountability system, many commenters opposed this 
requirement. One commenter noted that a State may want to use the same 
measure but in a different way in another indicator. For example, a 
State might include proficiency, as measured by the ACT, in the 
Academic Achievement indicator, but a measure of the number of students 
who meet the ACT college and career readiness benchmark in three or 
more content areas as a measure of postsecondary readiness within the 
School Quality or Student Success indicator. Other commenters noted 
that States may have other reasons to use a particular measure or 
instrument in more than one indicator. For example, States may want to 
use a nationally recognized assessment to measure postsecondary 
readiness within the State's School Quality or Student Success 
indicator, but also allow LEAs to use the same assessment in lieu of a 
State-required high school assessment for the Academic Achievement 
indicator, consistent with the flexibility under the ESEA, as amended 
by the ESSA.
    Discussion: We appreciate the commenters' concern that proposed 
Sec.  200.14(c)(4) could be interpreted to prevent a State from using 
an applicable measure across multiple indicators. In the scenario 
described by the commenters, the State would not be using the same 
measure, but rather the same instrument, within two different 
indicators. The Department's intention was not to preclude a State from 
using different measures derived from the same instrument for more than 
one indicator in its statewide accountability system, as described in 
the ACT example cited previously. Therefore, we agree that this 
requirement could have the unintentional effect of limiting a State's 
opportunity to use measures derived from the same data source across 
two indicators, and we are removing the requirement.
    Changes: We have removed the requirement in proposed Sec.  
200.14(c)(4).
    Comments: Several commenters supported the requirement in proposed 
Sec.  200.14(e) that State-selected indicators of Academic Progress or 
School Quality or Student Success produce varied results across schools 
in order to meet the statutory requirement for meaningful 
differentiation and to ensure that indicators provide meaningful 
insight into a school's performance. A few commenters were opposed to 
the requirement because they are concerned it would unduly limit State 
flexibility in selecting indicators. One commenter was concerned by the 
Department's language in the preamble of the NPRM that indicated 
average daily attendance was unlikely to show variation across schools; 
the commenter believes attendance is important and just because schools 
are all doing well on an indicator should not indicate that it would be 
unhelpful as a component of a statewide accountability system.
    Discussion: We appreciate the support for the requirement that 
indicators of Academic Progress and School Quality or Student Success 
must produce varied results across schools. Under section 
1111(c)(4)(B)(ii)(II) and 1111(c)(4)(B)(v)(I)(aa) of the ESEA,

[[Page 86101]]

respectively, States must ensure that Academic Progress and School 
Quality or Student Success indicators allow for meaningful 
differentiation in school performance. While the Department does not 
define the term meaningful differentiation, or how much variation an 
indicator must show, we believe that indicators in the State's system, 
consistent with the requirements of the law, must show varied results 
across schools in order to enable States to actually differentiate 
school performance. Given concerns that this requirement will overly 
limit State flexibility, which we believe may partly stem from a 
misinterpretation of the proposed language, we are revising Sec.  
200.14(e) to clarify that a State must demonstrate the measures in its 
Academic Progress and School Quality or Student Success indicators show 
variation across ``schools'' in the State, as the proposed language of 
``all schools'' could be misinterpreted to require a different result 
on the selected measure for each school in the State, which was not the 
intent of this provision. Finally, while we think it unlikely, as 
suggested in the preamble of the NPRM, that average daily attendance 
would yield the varied results needed to meet this requirement, the 
regulations do not prohibit such a measure if a State can demonstrate 
otherwise.
    Changes: We have revised Sec.  200.14(e) to refer to variation in 
results across schools generally, rather than ``all schools.''

Section 200.15 Participation in Assessments and Annual Measurement of 
Achievement

    Comments: Many commenters expressed support for the proposed 
regulations clarifying the actions that a State may take to ensure that 
all schools adhere to the 95 percent participation rate requirement on 
State assessments, including the 95 percent participation rate 
requirement for student subgroups, with one noting that this 
requirement was retained from NCLB. These commenters also stated that 
the proposed regulations are consistent with the spirit of the ESEA, as 
amended by the ESSA, by allowing States to determine the specific 
actions for schools that do not meet the 95 percent participation rate 
requirement while also providing flexibility for States to develop 
their own approaches to improving participation rates. Other commenters 
praised the proposed regulations for reinforcing the inclusion of all 
students in the State's assessment system through the 95 percent 
participation rate requirement. One commenter stated that the proposed 
regulations are critical to ensuring that States, districts, and 
schools take seriously the need to assess at least 95 percent of 
students and avoid loopholes that could undermine accountability 
systems. Several commenters also expressed strong support for the 
proposed improvement plans for schools that do not meet the 95 percent 
participation rate requirement, including the involvement of 
stakeholders such as parents and educators in developing these plans.
    Discussion: We appreciate the support of these commenters for the 
proposed regulations on the 95 percent participation rate requirement. 
In reviewing the comments and proposed regulations, we have determined 
that the regulations could more clearly reflect the statutory 
requirement that each State administer academic assessments to all 
public school students in the State, and we are revising Sec.  
200.15(a) to better distinguish this assessment requirement from the 
separate accountability requirement under section 1111(c)(4)(E) of the 
ESEA, as amended by the ESSA. The proposed regulations focused on this 
requirement to annually measure, for accountability purposes, the 
achievement of at least 95 percent of all students and 95 percent of 
all students in each subgroup on reading/language arts and mathematics 
assessments, but did not explicitly address the requirement under 
section 1111(b)(2)(B)(i)(II) of the ESEA that the required assessments 
in reading/language arts, mathematics, and science be administered to 
all public school students in the State, or the requirement under 
section 1111(b)(2)(B)(vi)(I) of the ESEA that the State must provide 
for the participation of all students in such assessments. If we do not 
explicitly reference these requirements in the regulations, States and 
other stakeholders might misinterpret the regulations to mean that only 
95 percent of students must be assessed on the required academic 
assessments, contradicting the requirements in section 1111(b)(2)(B) of 
the ESEA.
    Changes: We have revised Sec.  200.15(a)(1) to clarify that States 
are required to administer academic assessments in reading/language 
arts, mathematics, and science to all public school students in the 
State, and provide for all such students' participation in those 
assessments.
    Comments: One commenter cited numerous benefits of ensuring high 
participation rates consistent with the statute and the proposed 
regulations, emphasizing that high-quality assessments provide 
essential information that can be used to inform instruction, support 
student learning, ensure readiness for postsecondary education, guide 
professional development, and target evidence-based interventions to 
meet the needs of students and schools. The commenter also noted that 
non-participation inhibits the data transparency needed to support 
effective monitoring and program improvement, which can have a 
disparate impact on students with special needs and contribute to a 
widening of achievement gaps. This commenter also recommended that 
States provide information to parents, educators, and the public 
regarding the consequences of non-participation in assessments under 
their accountability systems and include parents and other stakeholders 
in developing interventions and supports for schools that do not meet 
the 95 percent participation rate requirement.
    Discussion: We appreciate and share this commenter's views on the 
importance of the 95 participation rate requirement. We note that the 
requirements for participation rate improvement plans in Sec.  
200.15(c)(1) of the final regulations include involvement by 
stakeholders--including principals and other school leaders, teachers, 
and parents--in the development of improvement plans.
    Changes: None.
    Comments: One commenter expressed strong support for proposed Sec.  
200.15, noting that accountability systems can be effective only when 
they include information on each student's performance on assessments 
aligned to rigorous State standards in reading/language arts and 
mathematics, and that there is no way to determine whether all students 
are meeting the long-term goals and measurements of interim progress 
for academic achievement required by section 1111(c)(4)(A) of the ESEA, 
as amended by the ESSA, without achievement data on State tests.
    Discussion: We appreciate the commenter's support for the proposed 
regulations.
    Changes: None.
    Comments: Many commenters asserted that the proposed regulations on 
the 95 percent participation rate requirement are part of an effort to 
restore what they described as test-based accountability in the ESEA, 
as amended by the ESSA. These commenters objected to the menu of 
proposed actions that would be required for schools that do not meet 
the 95 percent participation rate requirement, describing the 95 
percent requirement as an arbitrary threshold that effectively would 
punish schools and in turn

[[Page 86102]]

parents for their decisions to opt out of State assessments required by 
the ESEA, as amended by the ESSA.
    Discussion: While the ESEA, as amended by the ESSA, promotes 
statewide accountability systems based on multiple measures of student 
and school performance, the accurate and reliable measurement of 
student achievement on annual State assessments in reading/language 
arts and mathematics remains a required component of those systems. 
Specifically, as part of their statewide accountability systems 
required by the ESEA, as amended by the ESSA, States must set long-term 
goals and measurements of interim progress for academic achievement in 
reading/language arts and mathematics under section 
1111(c)(4)(A)(i)(I)(aa), as measured by the assessments in these 
subjects required under section 1111(b)(2). Academic achievement as 
measured by proficiency on these assessments also is a required 
indicator for State systems of annual meaningful differentiation under 
section 1111(c)(4)(B). In support of these requirements, the law 
requires annual assessments in reading/language arts and mathematics to 
be administered to all public school students in each of grades 3-8, 
and at least once between grades 9 and 12, and, separately, that States 
hold schools accountable for assessing at least 95 percent of their 
students. The 95 percent threshold is specified in section 
1111(c)(4)(E) of the ESEA, as amended by the ESSA, and both the 
Department and States are responsible for ensuring that all schools 
meet the 95 percent participation rate requirement. The final 
regulations, like the proposed regulations, are designed to assist 
States in fulfilling this responsibility, and ultimately provide States 
flexibility in determining how to factor participation rate into their 
accountability system.
    Changes: None.
    Comments: One commenter wrote that proposed Sec.  200.15 undermines 
the clear intent of Congress to empower State and local educators to 
engage in a collaborative process for developing broader accountability 
systems based on multiple measures of performance.
    Discussion: The proposed regulations on the 95 percent 
participation rate requirement are narrowly and appropriately targeted 
on ensuring that all schools meet that requirement, and do not in any 
way undermine or interfere with the authority or discretion of States 
to develop, or to engage in a collaborative process for developing, the 
broader, statewide accountability systems based on multiple measures of 
student and school performance that are encouraged by the ESEA, as 
amended by the ESSA. Further, the provisions of Sec.  200.15 are wholly 
consistent with, and within the scope of, the provisions of title I, 
part A of the ESEA, as amended by the ESSA, as well as with the 
Department's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA, as amended by the ESSA, (as previously described 
in the discussion of Cross-Cutting Issues) because they are consistent 
with and necessary to ensure that States fulfill their responsibilities 
under section 1111(c)(4)(E) of the ESEA, as amended by the ESSA. As 
such, they also do not violate section 1111(e) of the ESEA, as amended 
by the ESSA.
    Changes: None.
    Comments: One commenter stated that the requirements of proposed 
Sec.  200.15 do not take into account current efforts by States to 
improve assessment participation rates or the unique circumstances that 
may negatively affect participation rates.
    Discussion: We appreciate that many States, school districts, and 
schools already are engaged in efforts to increase assessment 
participation rates and that there are many reasons for low 
participation rates. However, the law requires States to factor the 95 
percent participation rate requirement, for schools and subgroups of 
students, into their statewide accountability systems regardless of 
such efforts, and the proposed regulations were designed to help States 
implement that requirement. States may incorporate current strategies 
and incentives for improving participation rates that reflect local 
needs and circumstances into the State-determined option for factoring 
the 95 percent participation rate requirement into their statewide 
accountability systems under Sec.  200.15(b)(2)(iv). We also note that 
existing State and local efforts to improve participation rates may 
provide a solid foundation for the school- and district-level 
improvement plans required by the final regulations.
    Changes: None.
    Comments: One commenter asserted that the proposed regulations 
could result in the diversion of resources from needy schools to 
wealthier schools due to the recent high incidence of opt outs at many 
wealthier schools. This commenter also stated that lower grades for 
typically high-performing schools due to their failure to meet the 95 
percent participation rate requirement could erode support for both 
State accountability systems and the individuals responsible for 
administering those systems.
    Discussion: The Department believes it is unlikely that meeting the 
95 percent participation rate requirement would divert significant 
resources to wealthier schools; the combination of ESEA program 
allocation requirements and the fiscal provisions in part A of title I 
generally ensure that high-poverty schools continue to receive their 
fair share of Federal, State, and local funds. In addition, under Sec.  
200.24(a)(1), LEAs may not use section 1003 school improvement funds to 
serve schools identified under Sec.  200.15(b)(2)(iii), if applicable, 
for targeted support and improvement due to missing the 95 percent 
participation rate requirement. This provision is explicitly intended 
to prevent the diversion of section 1003 improvement funds from schools 
that are identified for comprehensive or targeted support and 
improvement due to consistently poor student outcomes. We also note 
that the integrity of statewide accountability systems is at greater 
risk when schools--regardless of general beliefs about their quality or 
performance--do not meet the 95 percent participation requirement than 
when they receive lower performance determinations reflecting the lack 
of reliable data for accurately measuring performance against State-
determined college- and career-ready academic standards.
    Changes: None.
Required Denominator for Calculation of Academic Achievement Indicator
    Comments: Several commenters objected to the provisions that 
require States to take specific actions for schools that fail to meet 
95 percent participation rates, as well as the school and district 
improvement plans in proposed Sec.  200.15(c). These commenters stated 
that proposed Sec.  200.15(b)(1), which incorporates the statutory 
requirement that non-participants be counted as non-proficient for the 
purposes of annual meaningful differentiation, is sufficient penalty 
for failing to assess at least 95 percent of all students and all 
students in each subgroup.
    Discussion: Section 1111(c)(4)(E) of the ESEA, as amended by the 
ESSA, specifies two distinct consequences for failure to meet the 95 
percent participation rate requirement: (1) Counting non-participants 
in any school with a participation rate below 95 percent as non-
proficient for purposes of calculating the Academic Achievement 
indicator (by ensuring that the denominator for such calculation, at a 
minimum, includes at least 95 percent of students enrolled in the 
school); and (2) factoring the requirement into

[[Page 86103]]

statewide accountability systems. The Department disagrees with the 
commenters that the second statutorily specified consequence should be 
ignored. The final regulations, like the proposed regulations, are 
designed to support effective implementation of the requirement that 
States factor the 95 percent participation requirement into their 
accountability systems.
    Changes: None.
    Comments: Several commenters expressed concern about proposed Sec.  
200.15(b)(1), which incorporates statutory requirements related to the 
denominator that must be used for calculating the Academic Achievement 
indicator, essentially requiring non-proficient scores for most non-
participants for the purpose of annual meaningful differentiation of 
schools. In particular, commenters suggested that this requirement 
would unfairly reduce school performance ratings for schools in which 
parents are exercising their legal rights to opt their children out of 
State assessments required by the ESEA, as amended by the ESSA--actions 
over which districts and schools have no control. One commenter 
asserted that proposed Sec.  200.15(b)(1) exceeded the Department's 
legal authority.
    Other commenters expressed support for proposed Sec.  200.15(b)(1) 
and encouraged the Department to clarify in the final regulations how 
it must be implemented, including that students who opt out of State 
assessments must be part of the denominator for the Academic 
Achievement indicator calculation and that the only students who may be 
excluded from the denominator are those who were enrolled in a school 
for less than half of the academic year, as provided under proposed 
Sec.  200.20(b).
    Discussion: The final regulations retain the requirement that the 
denominator used for calculating the Academic Achievement indicator 
must include, for all students and for each subgroup of students, at 
least 95 percent of all such students in the grades assessed who are 
enrolled in the school each year. This requirement has the effect of 
ensuring that participation rates below 95 percent not only could have 
a significant impact on a school's performance on the Academic 
Achievement indicator but could also affect the school's overall 
determination in a State's accountability system. We further note that 
this provision is incorporated directly from the statute, specifically 
from the requirement in section 1111(c)(4)(E)(ii) of the ESEA, as 
amended by the ESSA. We appreciate that it would be helpful to provide 
States with assistance in implementing this requirement and plan on 
providing clarification in non-regulatory guidance. Finally, requiring 
all students that opt-out of State assessments to be counted as non-
participants would be inconsistent with the statute, which would not 
count such students as non-participants until a school's participation 
rate falls below 95 percent in a given year.
    Changes: None.
State Actions To Factor Participation Rate Into Statewide 
Accountability Systems
    Comments: Numerous commenters stated that the proposed actions that 
States would be required to take in schools that do not test 95 percent 
of their students in reading/language arts and mathematics, 
specifically lowering the rating of such schools in statewide 
accountability systems or identifying them for targeted support and 
improvement, are not consistent with other requirements of the Act. 
More specifically, these commenters asserted that proposed Sec.  200.15 
conflicts with section 1111(b)(2)(K) of the ESEA, as amended by the 
ESSA, which states that the assessment requirements in section 1111(b) 
do not preempt State or local law regarding the decision of a parent to 
not have his or her child participate in the assessments required by 
Part A of title I of the ESEA, as amended by the ESSA. Some commenters 
further expressed the belief that the proposed regulations appear to be 
intended to minimize parental resistance to what they described as the 
overuse and misuse of standardized tests, while others emphasized that 
districts and schools should not be penalized for the actions of 
parents. A few commenters stated that by not taking into account the 
opt-out movement, the proposed regulations could undermine the 
legitimacy and public acceptance of statewide accountability systems. 
These commenters generally recommended that the proposed regulations on 
assessment participation be revised to restate statutory requirements, 
including the right to ``opt out'' of ESEA assessments, and permit 
States to determine how to factor the 95 percent participation 
requirement into their accountability systems, or that the Department 
not issue any regulations on meeting the 95 percent participation rate 
requirement.
    Discussion: We recognize that section 1111(b) of the ESEA, as 
amended by the ESSA, protects the right of parents to withhold children 
from participation in State assessments in reading/language arts and 
mathematics. At the same time, the law requires that all students 
participate in annual assessments in English language arts and 
mathematics in each of grades 3-8, and at least once between grades 9 
and 12, and that States hold schools accountable for assessing at least 
95 percent of their students. Ensuring that States, LEAs, and schools 
have reliable, accurate assessment data on all students and all 
subgroups of students is essential to design meaningful accountability 
systems, to provide teachers and parents the information they need to 
improve instruction and student outcomes, and to guide States and 
districts in providing schools the resources, support, and assistance 
they need to make sure that all students graduate high school ready for 
college and careers.
    The proposed regulations provide a menu of options for States to 
use to help ensure that all schools meet the statutory 95 percent 
participation rate requirement. We believe these options will help 
protect the integrity of a State's accountability system; ensure that 
participation rate is included in a State's accountability system in a 
meaningful, transparent manner; and ensure that parents and teachers 
get the information they need to support students. For these reasons, 
the final regulations retain a menu of actions from which States may 
select for schools that do not test at least 95 percent of their 
students in reading/language arts and mathematics.
    Changes: None.
    Comments: A number of commenters requested that the Department 
strengthen the State options for addressing low assessment 
participation rates. One commenter provided specific recommendations 
for more rigorous actions by States for schools that miss the 95 
percent participation rate requirement. For example, this commenter 
suggested strengthening improvement plan consultation requirements by 
requiring the inclusion of at least one parent from each subgroup that 
does not meet the 95 percent participation rate requirement. This 
commenter also expressed concern that assigning a lower summative 
rating to a school that missed the 95 percent participation rate 
requirement might result in a relatively inconsequential reduction, 
such as from a ``B+'' to a ``B'' rating, and called for the final 
regulations to ensure that a State's actions lead to a meaningful 
reduction in the rating of such schools. The same commenter recommended 
that States be required to provide technical assistance aimed at 
helping schools explain to parents why assessment participation is 
important for the integrity of the State's

[[Page 86104]]

accountability system as well as how that system is used to provide 
supports for students and schools. Other commenters recommended 
clarifying that States may take more rigorous actions in schools that 
do not meet the 95 percent participation rate requirement than those 
included in the proposed regulations.
    Discussion: The Department appreciates support from commenters for 
strong actions to ensure that all schools meet 95 percent participation 
rates, but does not believe that more prescriptive requirements in this 
area would be consistent with the ESEA, as amended by the ESSA. We also 
believe that some of the recommended changes are unnecessary; for 
example, the requirement that participation rate improvement plans be 
developed in partnership with parents is likely to lead to involvement 
from parents from subgroups that do not meet the 95 participation 
requirement. Improvement plans also are likely to include efforts to 
explain to parents why assessment participation is important for the 
effective functioning of State accountability systems, including the 
delivery of supports for students and schools. Finally, because the 
proposed regulations already require States to take ``at least one'' of 
the required actions for schools that miss the 95 percent 
participation, we believe the regulations are clear that States may 
take more rigorous actions, including more rigorous State-determined 
actions, and that this point would be more appropriately reiterated 
through non-regulatory guidance.
    Changes: None.
    Comments: Many commenters asserted that the proposed regulations 
exceed the Department's authority under the ESEA, as amended by the 
ESSA, to determine how and the extent to which a State factors the 95 
percent participation rate requirement into its system of annual 
meaningful differentiation of schools. In support of their contention, 
commenters specifically cited section 1111(e)(1)(B)(iii)(XI), which 
prohibits the Secretary from prescribing the way in which a State 
factors the 95 percent participation rate requirement into its 
statewide accountability system. Several commenters also noted that 
while the assessment participation rate was a required accountability 
indicator under NCLB, it was not included among the indicators required 
by section 1111(c)(4)(B) of the ESEA, as amended by the ESSA. These 
commenters also stated that there is no basis in statute for the 
proposed requirements for school and district improvement plans to 
increase participation rates, and recommended the elimination of all 
proposed actions that States, districts, and schools would be required 
to take regarding schools that fail to assess at least 95 percent of 
all students and students in each subgroup.
    Discussion: The requirements in Sec.  200.15(b)-(c) for State 
actions to factor participation rates into their accountability systems 
and improve assessment participation in schools and LEAs are not 
inconsistent with section 1111(e)(1)(B)(iii)(XI) of the ESEA, as 
amended by the ESSA, because they do not prescribe the way in which a 
State must factor the 95 percent participation requirement into its 
statewide accountability system. The final regulations, like the 
proposed regulations, provide options for how a State may factor the 95 
percent participation rate requirement into its accountability system, 
including a State-determined option. In addition, each State has 
significant discretion regarding the precise manner in which it 
incorporates its selected option into its overall accountability 
system. Thus, we do not specify the way in which a State incorporates 
the 95 percent participation rate requirement into its accountability 
system.
    Further, the provisions of Sec.  200.15 are consistent with, and 
within the scope of, the provisions of title I, part A of the ESEA, as 
amended by the ESSA, as well as with the Department's rulemaking 
authority under GEPA, the DEOA, and Section 1601(a) of the ESEA, as 
amended by the ESSA (previously described in the discussion on Cross-
Cutting Issues), because they are necessary to reasonably ensure that 
States factor participation rate into statewide accountability systems, 
as required in section 1111(c)(4)(E) of the ESEA, as amended by the 
ESSA, and comply with the statutory requirement in section 
1111(1)(b)(2)(B)(i) of the ESEA, as amended by the ESSA, that a State 
assess all public elementary and secondary school students in the 
State. As such, they also do not violate section 1111(e).
    Finally, the proposed participation rate improvement plans are 
intended to support effective State and local implementation of the 
statutory 95 percent participation rate requirement through a 
collaborative, locally determined improvement process designed to 
minimize the need for more heavy-handed compliance actions by State or 
Federal authorities. Consequently, we believe the improvement plan 
requirements in the final regulations also are fully appropriate and 
consistent with the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter expressed support for proposed Sec.  
200.15(b)(2)(iii), which provides the option that a State may identify 
schools that miss the 95 percent participation rate requirement for 
targeted support and improvement. However, the commenter said this 
result should only be permitted if the identified schools are eligible 
to receive section 1003 school improvement funds to support 
implementation of their targeted support plans aimed at improving 
assessment participation.
    Discussion: The Department declines to make this change because the 
number of schools that could be identified by a State for targeted 
support and improvement due to missing the 95 percent participation 
rate requirement could reduce the availability of section 1003 
improvement funds for schools that are identified for comprehensive or 
targeted support and improvement due to consistently poor student 
outcomes.
    Changes: None.
    Comments: One commenter recommended that the regulations be revised 
to allow States to take into account the level of assessment 
participation and other factors (e.g., the number of subgroups, the 
size of the participation gap, the number of years missed) in 
determining consequences that would potentially increase over time if a 
school continues to miss the 95 percent participation rate threshold. 
Similarly, a few commenters variously recommended giving States 
flexibility to design multiple State-determined actions, including 
escalating interventions and supports that may be less rigorous than 
those in proposed Sec.  200.15(b)(2). Another commenter suggested that 
States be permitted to vary the weight given to the 95 percent 
participation rate requirement, with less severe consequences if 
failure to meet the requirement results from parents opting their 
children out of State assessments required by the ESEA.
    Discussion: The Department believes that the final regulations 
governing accountability for the 95 percent participation rate, like 
the proposed regulations, provide considerable flexibility for States 
to take into account the circumstances attending each school that fails 
to meet the 95 percent participation rate requirement. For example, 
under the final regulations, a State could assign a lower summative 
determination to a school that falls below the 95 percent threshold for 
one subgroup, while both assigning a lower determination and 
identifying for targeted support and improvement a

[[Page 86105]]

school that fails to meet the 95 percent participation requirement for 
multiple subgroups. A State also could propose a set of State-
determined actions that includes escalating interventions depending on 
the extent to which or how long a school has missed the 95 percent 
participation rate requirement. These actions, consistent with the 
section 1111(c)(4)(E) of the ESEA, as amended by the ESSA, must be 
included in the State's accountability system for meaningfully 
differentiating schools and identifying schools for support and 
improvement. In this context it is important to note that States have 
discretion under the final regulations to take more rigorous actions 
for schools that consistently fail to meet the 95 participation rate 
requirement or that miss the 95 percent threshold by a wide margin, or 
for all students or multiple subgroups of students in the school. 
However, we agree that States would benefit from greater flexibility to 
devise their own State-determined actions based on the scope and extent 
to which a school misses the 95 percent participation rate, and we are 
revising the final regulations accordingly. We further note that the 
required improvement plans also provide an opportunity for States and 
districts to take into account local circumstances, such as by varying 
the scope and rigor of such plans depending on the severity of the 
participation rate problem in a particular school.
    While we agree that States should have flexibility to determine the 
action taken in the school based on the scope or extent to which a 
school fails to meet the participation rate requirement, we disagree 
that States should be permitted to take less rigorous actions based on 
the reason for a school failing to meet the 95 percent participation 
rate requirement. Ensuring that all schools meet this requirement is 
essential for the integrity of the statewide accountability systems 
required by the ESEA, as amended by the ESSA, and permitting 
interventions that are not sufficiently rigorous risks sending the 
message that it is acceptable to miss the 95 percent participation rate 
requirement in some circumstances--an outcome that would not be 
consistent the requirements of the ESEA, as amended by the ESSA.
    Changes: We have revised Sec.  200.15(b)(2)(iv) to specify that an 
State may factor the 95 percent participation rate requirement into its 
system of annual meaningful differentiation through a State-determined 
action or set of actions that is ``sufficiently rigorous'' to improve a 
school's assessment participation so that it meets the requirement and 
removed the requirements for the State-determined action to be 
``equally rigorous'' and result in a similar outcome as actions 
described in Sec.  200.15(b)(2)(i)-(iii).
    Comments: A few commenters generally supported proposed Sec.  
200.15 with the exception of language in proposed Sec.  
200.15(b)(2)(iv) that would subject any State-determined action to 
approval by the Department as part of the State plan review and 
approval process under section 1111(a) of the Act. These commenters 
believe that the Department's role, consistent with their 
interpretation of the statute, should be limited to reviewing, and not 
approving, proposed State-determined actions for schools failing to 
meet the 95 percent participation rate requirement.
    Discussion: The requirement for Department review and approval of 
each State plan, which must include a description of the statewide 
accountability system that complies with all the requirements in 
sections 1111(c) and (d) of the ESEA, as amended by the ESSA, including 
the 95 percent participation rate requirement, is specified in section 
1111(a) of the ESEA, as amended by the ESSA. Limiting the Department's 
role to simply reviewing proposed State-determined actions for schools 
that fail to meet the 95 percent participation rate requirement would 
be inconsistent with this statutory requirement.
    Changes: None.
    Comments: One commenter requested that the Department provide 
greater clarity to States regarding what would constitute an ``equally 
rigorous'' State-determined action, consistent with proposed Sec.  
200.15(b)(2)(iv), in schools that do not meet the 95 percent 
participation requirement for all students and all subgroups of 
students. Another commenter similarly expressed concern that the term 
``equally rigorous'' is subject to interpretation and thus could cause 
confusion.
    Discussion: We are revising ``equally rigorous'' to ``sufficiently 
rigorous'' in the final regulations, as discussed previously. Given 
that we have removed language regarding ``equally rigorous'' actions, 
there is no need to clarify this term in the final regulations, as we 
believe the revisions to the final regulation will support effective 
review and approval of any proposed State-determined action or set of 
actions submitted to the Department through the State plan process 
under section 1111(a) of the ESEA, as amended by the ESSA. We recognize 
there are many ways in which States could design actions that are 
sufficiently rigorous to improve participation rates in schools that 
miss the requirement under Sec.  200.15(a)(2) and therefore decline to 
limit State discretion by adding more specific requirements.
    Changes: None.
    Comments: One commenter expressed concern that the proposed actions 
for schools that miss the 95 percent participation rate requirement 
would not permit flexibility when technical issues, such as the failure 
of computer networks, affect test participation rates.
    Discussion: The Department would retain authority under the final 
regulations to address technical or logistical anomalies related to 
State administration of the annual assessments required by the Act that 
have a negative impact on the ability of schools to meet the 95 percent 
participation rate requirement.
    Changes: None.
    Comments: One commenter expressed concern that the proposed 
regulations would require changes to existing methods of incorporating 
the participation rate into statewide accountability systems.
    Discussion: We believe that the final regulations related to the 95 
percent participation rate requirement, like the proposed regulations, 
provide sufficient flexibility and discretion for States that already 
have rigorous methods of incorporating assessment participation rates 
into their statewide accountability system to use the same or similar 
methods to meet the requirements of these final regulations. For 
example, under Sec.  200.15(b)(2)(iv), as revised in these final 
regulations, a State may propose, as part of its State plan under the 
Act, a State-determined action or set of actions to factor the 95 
percent participation rate requirement into its system of annual 
meaningful differentiation of schools, so long as any proposed action 
is sufficiently rigorous to improve participation rates in any school 
that fails to assess at least 95 percent of all students or 95 percent 
of students in each subgroup so that it will meet the requirements in 
Sec.  200.15(a).
    Changes: None.
    Comments: One commenter recommended that the final regulations 
include an exception to the 95 percent participation rate requirement 
for States that use a small n-size, on grounds that in such cases the 
effective participation rate for small schools or subgroups effectively 
becomes 100 percent.
    Discussion: The Department declines to make this change. Section 
1111(c)(4)(E) of the ESEA, as amended by the ESSA, does not provide for 
such an exception to the 95 percent participation rate requirement.
    Changes: None.

[[Page 86106]]

    Comments: One commenter stated that the proposed regulations 
specifying a range of State actions to enforce the statutory 95 percent 
participation rate requirement are unnecessary because any school 
failing to meet the requirement would already be subject to State and/
or Federal compliance remedies, which could include an improvement plan 
or other actions.
    Discussion: The Department believes clear regulations and guidance 
that promote State and local adherence to all the requirements of the 
ESEA, as amended by the ESSA, better serve students, educators, and the 
public than compliance remedies available under applicable law and 
regulation. The final regulations provide a clear, uniform, and 
understandable framework for effective implementation of the 95 percent 
participation rate requirement, through collaborative efforts at the 
State and local levels, which will support the overall goals and 
purposes of statewide accountability systems under the ESEA, as amended 
by the ESSA, while minimizing the need for heavy-handed compliance 
remedies.
    Changes: None.
    Comments: One commenter recommended that the final regulations 
regarding the 95 percent participation rate requirement include 
flexibility to prevent schools that fail to meet the requirement from 
being identified for comprehensive support and improvement or targeted 
support and improvement if their academic performance does not support 
such identification.
    Discussion: We believe that the menu of options in the final 
regulations provides sufficient flexibility and discretion to States to 
factor the 95 percent participation rate into their statewide 
accountability systems without inappropriately identifying schools for 
comprehensive or targeted support and improvement.
    Changes: None.
    Comments: One commenter recommended delaying the State actions 
required by proposed Sec.  200.15 until a school has missed the 95 
percent participation rate requirement for two consecutive years. This 
commenter asserted that such a delay would give schools time to meet 
the 95 percent participation rate requirement without State 
intervention, while ensuring that such interventions occur in schools 
that continue to fail to meet the requirement.
    Discussion: We appreciate commenter's recommendation in response to 
the directed question in the NPRM aimed at soliciting additional or 
different ways of supporting States in ensuring that low assessment 
participation rates are meaningfully addressed as part of their 
statewide accountability systems. However, given the statutory 
requirement that each State administer academic assessments to all 
public school students in the State, we believe that falling below a 95 
percent participation rate requires action as part of a State's annual 
system of meaningful differentiation of schools rather than what, under 
the commenter's proposal, would amount to little more than a warning 
after missing the 95 percent requirement for one year, even in cases 
where non-participation was widespread and significant. Waiting an 
additional year would jeopardize further the availability of reliable, 
accurate assessment data that teachers and parents need to improve 
instruction and student outcomes and that States, LEAs, and schools 
need to support timely and effective school improvement consistent with 
the requirements of the ESEA, as amended by the ESSA. However, 
consistent with the previous regulations implementing the ESEA, as 
amended by the NCLB, we are revising the final regulations to permit 
States to average a school's participation rates over two to three 
years for the limited purpose of meeting the requirements of Sec.  
200.15(b)(2), as described in revisions to Sec.  200.20(a) under the 
subheading Data Averaging.
    Changes: None.
Participation Rate Improvement Plans
    Comments: One commenter objected to the proposed requirement that 
all schools not meeting the 95 percent participation rate requirement 
develop and implement an improvement plan designed to increase 
assessment participation rates. In particular, the commenter believed 
that States should have flexibility around this requirement relating to 
how many times a school has missed the 95 percent participation rate 
requirement, the number of subgroups involved, or the size of a school 
(i.e., schools with small n-sizes where a school might miss the 95 
percent participation requirement due to non-participation by just one 
or two students). Other commenters supported the proposed participation 
rate improvement plan requirements.
    Discussion: We believe the participation rate improvement plan 
requirement includes much of the flexibility sought by the commenter. 
For example, a school that misses the 95 percent participation rate 
requirement by one or two students for a single subgroup may not 
require as rigorous or comprehensive an improvement plan as a school 
that has an 80 percent participation rate for the all students group. 
As for triggering the requirement, section 1111(b)(2)(B) of the ESEA, 
as amended by the ESSA, requires States to administer annual 
assessments in reading/language arts and mathematics to all public 
elementary school and secondary school students in the State and 
section 1111(c)(4)(E) requires States to annually measure, for 
accountability purposes, the achievement of not less than 95 percent of 
all students and all students in each subgroup of students who are 
enrolled in public schools. In view of these statutory requirements, we 
believe requiring a participation rate improvement plan for any school 
that misses the 95 percent participation rate in any year, for any 
reason is consistent with the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter recommended that schools not meeting the 95 
percent participation requirement in the ESEA, as amended by the ESSA, 
undertake a root cause analysis to determine the reasons for low 
participation rates, with an emphasis on such issues as chronic 
absence, suspension rates, school climate, student engagement, and 
parental support for testing. This commenter also recommended that, in 
cases where low participation rates are linked to chronic absenteeism, 
the final regulations should encourage States to work with public 
agencies and community stakeholders to remove barriers to regular 
school attendance.
    Discussion: We agree that a root cause analysis may be a useful 
part of a local process to develop the participation rate improvement 
plans required by the final regulations for schools that miss the 95 
percent participation rate requirement, and that the factors noted by 
the commenter could negatively affect assessment participation rates. 
However, we decline to further prescribe the components of the required 
school or district assessment rate improvement plans in recognition of 
the fact that the scope of such plans may vary widely depending on 
local context, and thus schools and LEAs should have discretion to 
develop plans that address local needs and circumstances.
    Changes: None.
    Comments: One commenter expressed appreciation for the inclusion of 
principals and other school leaders in the consultation requirements 
for the improvement plans that would be required under proposed Sec.  
200.15(c)(1), but recommended that the final regulations emphasize that 
such plans should be developed under the

[[Page 86107]]

leadership of, and not just in consultation with, school principals.
    Discussion: We believe that the final regulations, like the 
proposed regulations, provide sufficient flexibility to support strong 
leadership for principals in the development of participation rate 
improvement plans, while recognizing that in some cases other 
individuals or organizations (e.g., the local Parent Teacher 
Association) could take the lead in developing such plans.
    Changes: None.
    Comments: One commenter requested that the Department clarify the 
meaning of the term ``significant number of schools'' as used in 
proposed Sec.  200.15(c)(2), which requires participation rate 
improvement plans for districts with a significant number of schools 
that fail to meet the 95 percent participation rate requirement.
    Discussion: The Department declines to define or offer parameters 
around the term ``significant number of schools'' in the final 
regulations because the meaning may vary depending on local context and 
circumstances. For example, in a medium-size district, 5 schools could 
constitute a significant number, while 15 schools might not be 
considered a significant number of schools in a large district. 
However, the final regulations clarify that States may consider the 
number or percentage of schools failing to meet the participation rate 
requirement.
    Changes: We have revised Sec.  200.15(c)(2) by replacing the term 
``a significant number of schools'' with ``a significant number or 
percentage of schools.''
    Comments: One commenter recommended clarifying that locally based 
approaches to improving test participation may be incorporated into 
State accountability systems.
    Discussion: We believe that Sec.  200.15(b)(2)(iv) provides 
sufficient flexibility to incorporate locally based approaches to 
improving assessment participation rates into a State-determined option 
for factoring participation rates into statewide accountability systems 
without further elaboration in the final regulations.
    Changes: None.
    Comments: Two commenters recommended that the improvement plan 
requirement in proposed Sec.  200.15(c)(1) for schools that miss the 95 
percent participation rate requirement be expanded to cover schools 
that fail to assess at least 95 percent of their English learners on 
the ELP assessment. These commenters observed that including 100 
percent of English learners in ELP assessments is increasingly 
difficult due to a combination of the opt-out movement and high 
mobility among English learners, and asserted that requiring 
improvement plans for schools that do not assess at least 95 percent of 
their English learners on the ELP assessment would help improve 
participation rates on that assessment. These commenters further stated 
that such a requirement would align accountability requirements under 
the ESEA, as amended by the ESSA, while holding English learner 
students to a standard no higher than that of all other students. 
Another commenter requested clarification on whether the 95 
participation rate requirement applies to ELP assessments.
    Discussion: The 95 percent participation rate requirement is 
statutorily limited to the reading/language arts and mathematics 
assessments required by section 1111(b)(2)(v)(I) of the ESEA, as 
amended by the ESSA, and there is no basis for applying this 
requirement to ELP assessments. Moreover, such application, even to the 
extent of requiring participation rate improvement plans for schools 
that fail to administer ELP assessments to 95 percent of their English 
learner students, would send a confusing message to States, districts, 
and schools about the requirement under section 1111(b)(2)(G)(i) of the 
ESEA, as amended by the ESSA, to administer ELP assessments to all such 
students. In addition, any regulatory action that might be interpreted 
as permitting schools to administer ELP assessments to fewer than 100 
percent of English learners would likely be judged inconsistent with 
applicable civil rights laws.
    Changes: None.
Other Comments on Participation in Assessments
    Comments: One commenter recommended that the Department clarify 
proposed Sec.  200.15(d)(2) to specify that disciplinary actions may 
not be used to systematically exclude students in any subgroup of 
students from participating in State assessments required by the ESEA.
    Discussion: The Department agrees that disciplinary actions should 
not be used to exclude students from participating in assessments, but 
declines to enumerate in the final regulations the various methods and 
practices that may result in systematic exclusion of students from 
assessment participation. Such examples are more appropriate for non-
regulatory guidance. We are, however, revising the final regulations to 
clarify that systematic exclusion of students from the assessment 
system on any basis is not permitted, and that students may not be 
systematically excluded on State assessments any content area: Reading/
language arts, mathematics, or science.
    Changes: We have revised Sec.  200.15(d)(2) to clarify that a 
State, LEA, or school may not systematically exclude students, 
including any subgroup of students described in Sec.  200.16(a), from 
participating in the State assessments in reading/language arts, 
mathematics, and science.
    Comments: One commenter urged the Department to clarify in the 
final regulations that proposed Sec.  200.15(d)(3), which permits 
counting a student with the most significant cognitive disabilities who 
is assessed based on alternate academic achievement standards described 
in section 1111(b)(1)(E) of the ESEA, as amended by the ESSA, as a 
participant for purposes of meeting the 95 percent participation rate 
requirements only if a State has developed the guidelines required by 
section 1111(b)(2)(D)(ii) of the ESEA, as amended by the ESSA, and 
ensures that its LEAs adhere to such guidelines, applies only for the 
purposes of calculating the participation rate. The commenter also 
sought clarification that students who take the alternate assessment, 
but are not counted as participants for calculating the participation 
rate because the State has not developed appropriate guidelines for IEP 
teams, should be counted as participants for calculating proficiency.
    Discussion: We appreciate the concerns of the commenter but believe 
that the recommended clarifications are more appropriately addressed in 
non-regulatory guidance.
    Changes: None.
    Comments: One commenter recommended revising the final regulations 
to use the 95 percent participation rate requirement to increase 
school-level accountability for students who drop out and to 
incentivize reengagement efforts. More specifically, the commenter 
recommended that students who do not participate in assessments, and 
who have not been removed from a high school cohort because there is no 
documentation to support their removal as outlined in Sec.  
200.34(b)(3), be included in the denominator when calculating the 95 
percent assessment participation rate.
    Discussion: The Department appreciates and shares the commenter's 
commitment to increase high school graduation rates. However, we 
decline to make the recommended changes

[[Page 86108]]

because they are not consistent with the overall purpose of the 95 
percent participation rate requirement. That purpose is to help ensure 
the highest possible rates of student participation in the assessments 
in reading/language art and mathematics that are used in statewide 
accountability systems under the ESEA, as amended by the ESSA, and not 
to serve as a lever or incentive to improve other student outcomes.
    Changes: None.
    Comments: Two commenters recommended revising proposed Sec.  200.15 
to recognize the right of Native American students receiving 
instruction in Native American language medium schools to opt out of 
State assessments in reading/language arts and mathematics that are 
administered in English. These commenters also requested that States be 
required to exclude such students from the 95 percent participation 
rate requirement if the State lacks an appropriate assessment in the 
Native American language.
    Discussion: The Department declines to make these changes because 
the ESEA, as amended by the ESSA, does not provide for an exception to 
the 95 percent participation rate requirement for Native American 
students receiving instruction in Native American language medium 
schools. In addition, a policy of excluding certain students from 
statewide assessments would be inconsistent with the purpose of title I 
to close educational achievement gaps.
    Changes: None.
    Comments: None.
    Discussion: In reviewing the proposed regulations, the Department 
believes it is helpful to clarify the reason recently arrived English 
learners may be counted as participants on the State's reading/language 
arts assessment if they take either the State's reading/language arts 
assessment or the State's English language proficiency assessment; 
specifically, this flexibility applies to recently arrived English 
learners that may be exempted from one administration of the State's 
reading/language arts assessment, as described in Sec.  
200.16(c)(3)(i)(A), and not to other recently arrived English learners 
who take the State's reading/language arts assessment in each year of 
their enrollment in U.S. schools. This clarification is necessary 
because the ESEA, as amended by the ESSA, added an additional exemption 
that States may consider for holding schools accountable for the 
performance of recently arrived English learners, which requires 
assessment in reading/language arts in the first year of the student's 
enrollment in U.S. schools as described in Sec.  200.16(c)(3)(ii).
    Changes: We have revised Sec.  200.15(d)(4) to clarify that this 
provision applies to recently arrived English learners who are exempted 
from one administration of the State's reading/language arts assessment 
consistent with Sec.  200.16(c)(3)(i)(A).

Section 200.16 Subgroups of Students

    Comments: A few commenters suggested that the Department replace 
the word ``subgroups'' with the term ``student groups'' throughout the 
regulations. One commenter explained that the term subgroup is an 
outdated term that implies that some groups are lesser than others.
    Discussion: We appreciate the commenters' suggestion, but believe 
it is beneficial to use the same terminology contained in the statute. 
Therefore, throughout the regulations, we refer to subgroups of 
students.
    Changes: None.
    Comments: Two commenters asked that the Department modify proposed 
Sec.  200.16 to specify that a student who meets the definition of 
English learner in section 8101(20) of the ESEA and who is instructed 
primarily through a Native American language be included in the English 
learner subgroup for the entire time that the student is taught in a 
Native American language, and that such students who transfer to a 
school in which instruction is in English may be considered as newly-
enrolled English learners.
    Discussion: As the commenters note, the term ``English learner'' is 
defined in section 8101(20) of the ESEA, as amended by the ESSA. That 
definition includes provisions under which a student who is Native 
American or Alaska Native and who comes from an environment where a 
language other than English has had a significant impact on his/her 
level of English language proficiency is considered an English learner. 
States include students in the English learner subgroup for 
accountability as long as they are ``English learners.'' Specifically, 
under section 3113(b) of the ESEA, as amended by the ESEA, and 
Sec. Sec.  299.13(c)(2) and 299.19(b)(4) of the final regulations, 
States must establish standardized statewide entrance and exit 
procedures for English learners, which, as in Sec.  299.19(b)(4) of the 
final regulations, require English learner exit criteria to be the same 
criteria used to exit students from the English learner subgroup for 
accountability purposes. The issue of when a student is no longer an 
``English learner'' is not dependent on the classroom language of 
instruction. Because the exit procedures are not related to the 
language of instruction, there is no need for the specific provisions 
requested. In addition, we note that Sec.  200.16(c) permits States to 
include in the English learner subgroup the performance of former 
English learners for four years, for purposes of calculating any 
indictor that is based on data from State assessments under section 
1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
    Changes: None.
Combined Subgroups of Students (``Super Subgroups'')
    Comments: Many commenters expressed support for what they believed 
was a prohibition against combined subgroups of students in the 
proposed regulations. One commenter suggested that Sec.  200.16(c) be 
clarified to explain that a State may not combine any of the subgroups 
listed in Sec.  200.16(a)(2) as an additional subgroup.
    Discussion: We appreciate the support from commenters highlighting 
the importance of accountability for individual subgroups of students, 
but note that the proposed regulations did not prohibit combined 
subgroups entirely; rather, they require the use of specified 
individual subgroups of students for certain purposes in statewide 
accountability systems and permit the use of additional subgroups of 
students in its statewide accountability system, which may include 
combined subgroups of students. Consistent with section 1111(c)(2) of 
the ESEA, the regulations require that a State include certain 
subgroups of students, separately, when establishing long-term goals 
and measurements of interim progress under Sec.  200.13, measuring the 
performance on each indicator under Sec.  200.14, annually meaningfully 
differentiating schools under Sec.  200.18, and identifying schools 
under Sec.  200.19. These subgroups of students include economically 
disadvantaged students, students from each major racial and ethnic 
group, children with disabilities, as defined in section 8101(4) of the 
ESEA, and English learners, as defined in section 8101(20) of the ESEA. 
However, the statute does not prohibit a State from using additional 
subgroups in its statewide accountability system, which may include 
combined subgroups. We also believe it is appropriate for States to 
retain flexibility to include various additional subgroups, based on 
their contexts, so long as each required individual subgroup is also 
considered. Accordingly, we are not revising the regulations.

[[Page 86109]]

    Changes: None.
    Comments: A number of commenters supported the requirement that a 
combined subgroup cannot be used in place of considering each of the 
required individual subgroups. A few commenters focused on the 
importance of maintaining the individual subgroups included in the 
proposed regulations. Some commenters noted that the use of so-called 
``super subgroups'' in school ratings can mask underperformance of some 
individual subgroups of students, making it more difficult to identify 
schools with one or more consistently underperforming subgroups of 
students for targeted support and improvement, making it more 
challenging to provide specialized supports to support improvement, and 
limiting information available to the public and parents. Other 
commenters stated that combining subgroups of students without 
considering individual subgroups of students is contrary to the 
statutory purpose of increasing transparency, improving academic 
achievement, and holding schools accountable for the success of each 
subgroup. One commenter noted that there are different funding streams 
for particular subgroups of students, and that retaining individual 
definitions of these subgroups helps to ensure accountability for use 
of these funds.
    Some commenters highlighted that a combined subgroup can be 
important as an additional subgroup, as it may allow a State to include 
students in the statewide accountability system that would not 
otherwise be included. One commenter provided a State-level example to 
highlight how many more students are identified in a State 
accountability system when a combined subgroup is used in addition to 
individual subgroups.
    A few commenters supported the use of combined subgroups for 
accountability and believe a State should be able to use them in place 
of each of the required subgroups. Other commenters suggested that 
holding schools accountable for individual subgroups of students could 
raise questions regarding the validity and reliability of statewide 
accountability systems. Some commenters suggested that combined 
subgroups should be permitted for accountability, but that individual 
subgroups should be maintained for reporting.
    Discussion: We appreciate the wide range of views from commenters 
both in support of and in opposition to the requirement that each 
individual subgroup described in Sec.  200.16(a)(2) must be considered 
in a State's accountability system, and that such subgroups cannot be 
replaced by a combined subgroup. We believe that the final regulations 
strike the appropriate balance between ensuring accountability for 
individual subgroups of students specified in the ESEA, as amended by 
the ESSA, while also providing flexibility for States to include 
additional subgroups, including combined subgroups, in their statewide 
accountability systems.
    Changes: None.
    Comments: One commenter opposed the requirement that all indicators 
in a statewide accountability system measure the performance of each 
subgroup of students that meets the minimum n-size because it would 
increase the likelihood of diverse schools missing goals or receiving 
lower school ratings.
    Discussion: We acknowledge the commenter's concern, but believe 
that the ESEA, as amended by the ESSA, requires the consideration of 
individual subgroups for accountability purposes. Annual meaningful 
differentiation of school performance is addressed in greater detail in 
response to comments on Sec.  200.18.
    Changes: None.
    Comments: One commenter suggested that the Department consider 
allowing the use of the combined subgroup approach for the English 
learners, children with disabilities, and economically disadvantaged 
subgroups of students, provided that each State that combines these 
subgroups of students reports data on each subgroup individually as 
well as each of the ways that these three groups of students may be 
combined.
    Discussion: We believe that the ESEA, as amended by the ESSA, 
requires the consideration of these individual subgroups of students 
for accountability purposes, and not, as recommended by the commenter, 
just for reporting purposes.
    Changes: None.
    Comments: One commenter requested that the proposed regulations be 
clarified to reflect that each subgroup of students should not include 
any duplicated students. Another commenter suggested that the use of 
combined subgroups of students in place of individual subgroups of 
students would help address what the commenter described as the problem 
of including students in multiple subgroups (e.g., an economically 
disadvantaged student who is also a child with a disability).
    Discussion: We appreciate that under both the ESEA, as amended by 
the ESSA, and the proposed regulations some students may be identified 
in more than one subgroup of students, but we believe this duplication 
is essential to ensure that statewide accountability systems account 
for and help address what often are the multiple needs of individual 
students for different types of academic and non-academic support. 
Reducing such duplication through the use of a combined subgroup could 
mask underperformance by individual subgroups of students and thus 
inhibit the provision of needed services and supports for such 
students.
    Changes: None.
Racial and Ethnic Subgroups
    Comments: One commenter supported the requirement that a State 
consider each major racial and ethnic subgroup separately in its 
statewide accountability system. A few commenters, however, objected to 
the proposed requirement that students from each major racial and 
ethnic subgroup must be considered separately for the purposes of 
statewide accountability systems as an overreach of the Department's 
authority. These commenters asserted that the absence of the word 
``each'' in the reference to students from major racial and ethnic 
groups in section 1111(c)(2)(B) of the ESEA, as amended by the ESSA, 
should be interpreted as providing flexibility for States to use a 
combined subgroup of students that includes students from all racial 
and ethnic groups. The commenters explained that the performance of 
students in individual racial and ethnic subgroups can still be 
reported for transparency.
    Discussion: We agree with the commenter who expressed support for 
the regulations requiring a State to consider each major racial and 
ethnic subgroup separately for the purposes of its statewide 
accountability system. We believe that this regulation reflects the 
best reading of the statute, and do not agree with those commenters who 
assert that the absence of the word ``each'' from section 1111(c)(2)(B) 
of the ESEA, as amended by the ESSA, indicates that Congress intended 
for students from all major racial and ethnic groups to be combined 
into one subgroup. Such a subgroup would be virtually, if not 
completely, duplicative of all students, which could not have been 
Congress' intent. Rather, we believe Congress' reference to ``major 
racial and ethnic groups'' was intended to refer to the fact that 
States have authority to determine what the major racial and ethnic 
groups in their State are for purposes of compliance with this 
requirement. As such, there is not one list of major racial and ethnic 
groups that Congress could have included within section 1111(c)(2)

[[Page 86110]]

of the ESEA, as amended by the ESSA. Accordingly, we believe the 
regulatory clarification that ``each'' major racial and ethnic subgroup 
must be included is necessary to reasonably ensure compliance with this 
provision of the statute, and to ensure that States incorporate 
differentiated information for historically underserved subgroups of 
students into their accountability systems, thereby promoting 
educational equity. We note, further, that this interpretation of the 
statute is consistent with the interpretation of identical language 
used in prior authorizations of the ESEA.
    Changes: None.
    Comments: One commenter suggested that the Department require every 
student to be included as a member of one major racial and ethnic 
subgroup. The commenter indicated concern that when a student is 
included as a member of the ``two or more races'' subgroup of students 
the student may not be identified as a member of any one specific 
racial and ethnic subgroup should the ``two or more races'' subgroup of 
students not be identified by the State, which could result in the 
State not collecting data on all students. The commenter expressed that 
requiring each student to be a part of one racial and ethnic subgroup 
will help to ensure that subgroups of students meet the minimum n-size 
and can be included in a State accountability system.
    Discussion: We appreciate the commenter's desire to ensure that 
subgroups of students accurately reflect the population of the school. 
Section 1111(c)(2)(B) requires a State to identify, for the purposes of 
including required subgroups of students in its statewide 
accountability system, ``students from major racial and ethnic 
groups.'' This requirement places responsibility on each State to 
identify which racial and ethnic groups are ``major'' within the State. 
Therefore, we decline to define in the final regulations which 
subgroups of students must be included in a State's major racial and 
ethnic subgroups, as that is a State-specific determination. For the 
purposes of Federal data collection, the Department published final 
guidance in 2007 that allows individuals to select more than one race 
and/or ethnicity and expanded the reporting categories to include ``two 
or more races.'' Accordingly, a State may choose to include two or more 
races as a subgroup of students for accountability purposes, if the 
State considers that subgroup of students to be a major one within the 
State. We appreciate the commenter's concern that there may be small 
numbers of students in certain subgroups of students, and therefore, 
that students in those smaller subgroups of students may not be 
identified in a State's statewide accountability system, and address 
that issue in response to comments on Sec.  200.17 (disaggregation of 
data).
    Changes: None.
New Subgroups
    Comments: A number of commenters requested that States be required 
to include additional subgroups beyond those listed in proposed Sec.  
200.16, including, for example, Native American students who attend 
Native American Language Schools and Programs, juvenile justice-
involved youth, LGBT students, students who did not attend preschool, 
homeless students, transient students, and migratory students.
    Discussion: The individual subgroups of students currently required 
in statewide accountability systems by the regulations are consistent 
with those required by the ESEA, as amended by the ESSA. While we 
understand that creating additional subgroups of students may help 
focus needed attention of underserved students with unique academic and 
non-academic needs, we believe States should have discretion over the 
inclusion of any additional subgroups in their statewide accountability 
systems. Consequently, we decline to provide further regulation in this 
area.
    Changes: None.
    Comments: One commenter noted that proposed Sec.  200.16(b)(2) 
included a reference to students with a disability who are covered 
under Section 504 of the Rehabilitation Act (Section 504) when 
discussing students who are English learners with a disability and 
raised questions regarding the inclusion of students receiving services 
under Acts other than the IDEA. The commenter noted that nowhere else 
in the proposed changes, nor historically in EDFacts data collections, 
have students served under Section 504 been included with the subgroup 
of children with disabilities, as EDFacts collects information only on 
students identified as children with disabilities under the IDEA. The 
commenter questioned whether States should expect that students with 
disabilities covered under Section 504 will be included in the children 
with disabilities subgroup for the purposes of reporting, and asked for 
additional clarification about whether the Department intends to 
require separate reporting for students with disabilities covered under 
Section 504.
    Discussion: We appreciate the request for clarification about this 
provision of the proposed regulations, which applies only to the 
English learner subgroup of students with regard to using the State's 
ELP assessment within the Progress in Achieving English Language 
Proficiency indicator. Under the section 1111(b)(2) of the ESEA, as 
amended by the ESSA, assessment accommodations for all students, 
including English learners, extend to students with disabilities 
covered under the IDEA, Section 504, and students with a disability who 
are provided accommodations under other Acts (i.e., title II of the 
Americans with Disabilities Act (ADA)). To be more consistent with 
these statutory requirements, we are revising the final regulations on 
English learners with a disability to include English learners that 
receive services under title II of the ADA. It is possible that English 
learners with a disability covered under IDEA, Section 504, or title II 
of the ADA may have a disability for which there are no available and 
appropriate accommodations for one or more domains of the State's ELP 
assessment because the student has a disability that is directly 
related to that particular domain (e.g., a non-verbal English learner 
who because of an identified disability cannot take the speaking 
portion of the assessment, even with accommodations)--the students 
described in proposed Sec.  200.16(b)(2). Under the final regulations, 
we are clarifying that this determination can be made, on an 
individualized basis, by the student's IEP team, the student's 504 
team, or for students covered under title II of the ADA, by the 
individual or team designated by the LEA to make those decisions; for 
such an English learner, the State must include the student's 
performance on the ELP assessment based on the remaining domains in 
which it is possible to assess the student. Whether the student 
receives services under the IDEA or is not eligible for services under 
the IDEA, but receives services under Section 504 or title II of the 
ADA, this student's score would count for the purpose of measuring 
performance against the Progress in Achieving English Language 
Proficiency indicator.
    These regulations do not create an additional subgroup for 
accountability or for reporting purposes on the performance of students 
with disabilities who receive services under Section 504 or title II of 
the ADA who are also English learners. Additionally, we note that under 
section 3121(a)(2) of the ESEA, as amended by the ESSA, an LEA must 
provide disaggregated data when reporting the number and percentage of 
English learners making progress toward ELP for English learners

[[Page 86111]]

with disabilities. The term ``English learner with a disability'' is 
defined in the ESEA to mean an English learner who is also a child with 
a disability as defined under section 602 of the IDEA. Rather than 
modifying the students included in the children with disabilities 
subgroup, the Department intended for these provisions to emphasize the 
importance of ensuring that there are available and appropriate 
accommodations for English learners who are also students with 
disabilities and who receive services under the IDEA, Section 504, or 
title II of the ADA.
    Changes: We have revised Sec.  200.16(c)(2) to clarify that the 
accommodations for English learners with a disability are determined on 
an individualized basis by the student's IEP team, 504 team, or 
individual or team designated by the LEA to make these decisions under 
title II of the ADA.
Former Children With Disabilities
    Comments: A number of commenters replied to the Department's 
directed question asking whether the provision to allow a State to 
include the scores of students who were previously identified as 
children with disabilities under section 602(3) of the Individuals with 
Disabilities Education Act (IDEA), but who no longer receives special 
education services (``former children with disabilities''), in the 
children with disabilities subgroup for the limited purpose of 
calculating the Academic Achievement indicator, and if so, whether such 
students may be included in the subgroup for up to two years consistent 
with current title I regulations, or for a shorter period of time.
    A few commenters indicated that a State should have the flexibility 
to include the scores of former children with disabilities for the 
purpose of calculating the Academic Achievement indicator for up to 
four years, consistent with the statutory approach for former English 
learners. One commenter indicated that this approach would recognize 
that the student population changes over time and allow schools to be 
rewarded for the progress they have made in supporting former children 
with disabilities even after they exit from special education services. 
Another commenter asserted that the proposed flexibility would be 
important as students are still often receiving specialized supports 
when they have recently exited from special education services. A few 
commenters endorsed this approach so that students in the children with 
disabilities subgroup would be treated the same way as students 
formerly in the English learner subgroup. Another commenter believed 
that the flexibility should be more expansive so that a State could 
include the scores of former children with disabilities for as long as 
the State determines to be appropriate. The commenter cited the example 
of a student with a language-based disability who is instructed in a 
Native American language and may overcome the disability as related to 
the Native American language, and then encounter the disability again 
when transferred to a school where the student receives instruction in 
English.
    A number of commenters supported States having the flexibility to 
include the scores of former children with disabilities in the children 
with disabilities subgroup for the purpose of calculating the Academic 
Achievement indicator for up to two years. The commenters contended 
that this flexibility would provide appropriate incentives to exit 
students from special education when they no longer require services 
and receive credit for the progress that schools have made in 
supporting such students. A few commenters also noted that it would 
ensure that schools remain accountable for the academic progress of 
children with disabilities once they exit from special education 
services. One commenter highlighted that students who transfer from 
special education back to general education make up about 9.3 percent 
of students aged 14-21 who exit a State's special education services 
under IDEA and explained that allowing their scores to be counted in 
the children with disabilities subgroup for up to two years would allow 
a State to continue monitoring and better understand special education 
and general education student performance.
    On the other hand, many commenters objected to allowing a State to 
include the scores of former children with disabilities in the children 
with disabilities subgroup for purposes of calculating the Academic 
Achievement indicator. Most of these commenters agreed that the last 
year a student should count in the subgroup of children with 
disabilities is the year in which the student exits from receiving 
special education services. These commenters emphasized the need for 
accountability systems to accurately reflect students who are currently 
receiving special education services in the subgroup of children with 
disabilities. One commenter suggested that this flexibility would 
confound the baseline data in States, while a few commenters noted that 
unlike with respect to former English learners, the law does not 
explicitly provide States with the flexibility to include former 
children with disabilities in the subgroup of children with 
disabilities. One commenter asserted that extending flexibility to 
former children with disabilities would exceed the Department's 
rulemaking authority because such flexibility is not included in 
statute. A few other commenters suggested that past reasons for 
including former children with disabilities in the subgroup of children 
with disabilities are irrelevant under the ESSA because of changes to 
the accountability requirements. One commenter indicated that including 
the achievement of former children with disabilities for purposes of 
determining the achievement of the subgroup of children with 
disabilities under the ESSA's accountability structure will result in a 
system in which former children with disabilities are included for some 
purposes, but not all--adding confusion to the system and undermining 
transparency. A few commenters objected to this flexibility, noting 
that while English learners are expected to gain proficiency and exit 
English learner status, the goal for children with disabilities is not 
necessarily to exit special education services. One commenter indicated 
that there is not sufficient data on how many States, if any, are 
currently using this option and another suggested it is not the 
methodology employed within its State.
    Finally, one commenter suggested that former children with 
disabilities who are included in the subgroup of children with 
disabilities should also be counted in calculations of whether a 
school's subgroup of children with disabilities exceeds the State's n-
size.
    Discussion: We appreciate the comments in response to the directed 
question. We asked this question to determine whether we should 
maintain the flexibility that exists under Sec.  200.20 of the current 
regulations. Current Sec.  200.20 provides that in determining AYP for 
English learners and students with disabilities, a State may include in 
the English learner and students with disabilities subgroups, 
respectively, for up to two AYP determinations, scores of students who 
were previously English learners, but who have exited English learner 
status, and scores of students who were previously identified as a 
child with a disability under section 602(3) of the IDEA, but who no 
longer receive services.
    We believe the flexibility to count the scores of former children 
with disabilities in the subgroup of children with disabilities for up 
to two years after the student exits services for the limited

[[Page 86112]]

purpose of calculating indicators that are based on data from the 
required State assessments in reading/language arts and mathematics 
under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA, 
recognizes the progress that schools and teachers make to exit students 
from special education and provides an incentive to continue to support 
such students in the initial years in which the student is 
transitioning back to general education. We also agree that it is 
critical to maintain a transparent subgroup of children with 
disabilities, so that the subgroup data are accurate and schools are 
appropriately identified for supports. To that end, the final 
regulations require that a State include such scores only if the scores 
of all former children with disabilities are included in conformance 
with a uniform statewide procedure. Allowing a State to select which 
former children with disabilities to include, for which purposes, or 
for how long could undermine the fairness of accountability systems 
across the State by encouraging the inclusion of higher-achieving 
former children with disabilities only, or encouraging the inclusion of 
higher-achieving former children with disabilities for longer periods 
of time than their lower-achieving peers. We note that this regulation 
is a limited exception as it only allows a State to include these 
scores for the purposes of calculating indicators that rely on State 
assessment data in reading/language arts and mathematics and, as noted 
in proposed Sec.  200.16(d), does not extend such flexibility to other 
elements of the statewide accountability system or for reporting 
purposes.
    However, we are not persuaded that either available data or current 
practices related to including former children with disabilities in the 
subgroup of children with disabilities justify extending this 
flexibility beyond two years, whether it be up to four years as is the 
case for former English learners or for a State-determined period of 
time as recommended by one commenter.
    We do not agree that the fact that Congress specifically provided 
flexibility to include the scores of former English learners in the 
subgroup of English learners precludes the Department from offering 
flexibility to include the scores of former children with disabilities 
in the subgroup of children with disabilities. Nothing in the statute 
indicates that, by offering flexibility for one subgroup of students, 
Congress intended to prohibit similar flexibility for other subgroups 
of students. Providing this flexibility with respect to former children 
with disabilities constitutes a reasonable exercise of the Department's 
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the 
ESEA, as amended by the ESSA, and does not violate section 1111(e) of 
the ESEA, as amended by the ESSA (see discussion of the Department's 
general rulemaking authority under the heading Cross-Cutting Issues), 
as such flexibility is necessary to reasonably ensure that each 
statewide accountability system is appropriately designed to improve 
student academic achievement and school success, in accordance with the 
requirements in section 1111(c)(4) of the ESEA, as amended by the ESSA.
    For all of these reasons, we are revising Sec.  200.16 to retain 
the flexibility provided in the current regulations for former children 
with disabilities. We also are revising Sec.  200.16 to require States 
to count former children with disabilities who are included in the 
subgroup of children with disabilities for purposes of determining 
whether a school's subgroup of children with disabilities exceeds the 
State's n-size for the purposes of calculating any indicator that is 
based on State assessment data, in accordance with the similar 
treatment for former English learners.
    Changes: We have revised Sec.  200.16 by adding Sec.  200.16(b) to 
allow a State to include the scores of former children with 
disabilities for up to two school years following the year in which the 
student exits from special education services for the purposes of 
calculating any indicator under Sec.  200.14(b) that uses data from 
State assessments under section 1111(b)(2)(B)(v)(I) of the ESEA, as 
amended by the ESSA, including that such a student must also count 
toward whether the school meets the State's minimum number of students 
for the children with disabilities subgroup for measuring any such 
indicator, and that the State must develop a uniform statewide 
procedure for doing so that includes all such students for the same 
State-determined period of time. We also made conforming edits to the 
remaining paragraphs in Sec.  200.16 and reorganized and renumbered 
them, including by adding a paragraph on limitations in Sec.  200.16(d) 
to clarify the purposes for which both former English learners and 
children with disabilities may be included, consistent with revisions 
to Sec.  200.34 on calculating four-year adjusted cohort graduation 
rates.
    Comments: One commenter suggested that the flexibility to include 
former children with disabilities should extend to the Graduation Rate 
indicator, as well as the Academic Achievement indicator, believing 
that including the scores of exited students in both indicators will 
provide a better snapshot of school performance over time. Another 
commenter suggested that the flexibility to include former children 
with disabilities in the children with disabilities subgroup should 
extend across all indicators and to identification of schools for 
targeted support and improvement.
    Discussion: We believe that revisions to Sec.  200.34 of the final 
regulations addresses the commenter's concern with regard to graduation 
rates, because those revisions require a child with a disability to be 
included in the adjusted cohort graduation rate for the children with 
disabilities subgroup if the student was identified as part of the 
subgroup at any time during high school. In practice, this means that 
if a student exited from receiving special education services in grade 
9 and graduated in four years, the student will count as a graduate for 
the subgroup of children with disabilities, even though the student did 
not receive services under IDEA for the student's final three years of 
high school. Further, a State may include the results of former 
children with disabilities in other indicators, such as Academic 
Progress, if the measure is based on data from the required State 
assessments in reading/language arts or mathematics (e.g., student 
growth or gap closure on these assessments). However, we do not believe 
further flexibility is warranted with regard to other indicators used 
for differentiation and identification of schools that do not utilize 
data from State assessments, as States already have significant 
discretion in selecting measures for other indicators that take into 
account school climate, student engagement, or other factors that are 
less directly related to academic achievement.
    Changes: We have revised Sec.  200.16(d) to clarify the purposes 
for which both former English learners and children with disabilities 
may be included within the applicable subgroups, consistent with 
revisions to Sec.  200.34 on calculating adjusted cohort graduation 
rates.
    Comments: One commenter suggested that the ability to include the 
scores of former children with disabilities should not apply to 
students whose parents revoke consent to the continued provision of 
special education services.
    Discussion: We believe it would create undue confusion to create an 
exception for parents who revoke consent to the general rule about 
including the scores of former children with disabilities, especially 
as this provision is already limited in scope to the calculation of 
indicators that are

[[Page 86113]]

based on data from State assessments required under section 
1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
    Changes: None.
Former English Learners
    Comments: A number of commenters requested that a State be 
permitted to include former English learners for calculating indicators 
in addition to the Academic Achievement indicator. One of those 
commenters requested that former English learners also be included for 
reporting purposes.
    Discussion: Section 1111(b)(3)(B) of the ESEA, as amended by the 
ESSA, permits inclusion of former English learners' results on the 
reading/language arts and mathematics assessments for up to four years 
for purposes of English learner subgroup accountability. These 
assessment results are included in the Academic Achievement indicator, 
as recognized in the proposed regulations, but we agree with 
commenters, in part, that there may be cases where other indicators 
should include former English learners because the indicator is also 
based on data from the required State assessments in reading/language 
arts or mathematics (e.g., a State that measures growth in reading/
language arts and mathematics in grades 3-8 in its Academic Progress 
indicator). Further, we believe this interpretation is more consistent 
with the statutory provision in section 1111(b)(3)(B) of the ESEA. 
Thus, we are revising the final regulations to clarify that, if a State 
chooses to include former English learners for accountability purposes, 
such students may be included in any indicator under the ESEA that uses 
results from the State's reading/language arts and mathematics 
assessments. In any case where required State assessments in reading/
language arts and mathematics are not included in an accountability 
indicator, former English learners may not be included, as expanding 
this flexibility to indicators that are not based on such State 
assessments or reporting would potentially limit subgroup 
accountability for current English learners in contravention of the 
statute. However, consistent with revisions to Sec.  200.34, an English 
learner may be included for purposes of calculating the adjusted cohort 
graduation rate for the subgroup if the student was identified as part 
of the subgroup at any time during high school. In practice, if a 
student met the State's exit criteria for English learners in grade 11 
and graduated in four years, the student could be counted as a graduate 
in the four-year adjusted cohort graduation rate for the English 
learner subgroup, even though the student did not receive language 
instruction services for the final year of high school. We believe that 
this additional flexibility partially addresses the commenters' concern 
with regard to the Graduation Rate indicator, but we do not believe 
further flexibility is warranted with regard to other indicators, as 
States already have significant discretion in selecting measures for 
other indicators that take into account student progress, school 
climate, student engagement, or other factors that are less directly 
related to academic achievement.
    Changes: We renumbered and revised Sec.  200.16(d) to clarify the 
purposes for which both former English learners and children with 
disabilities may be included within the respective subgroups, 
consistent with revisions to Sec.  200.34 on calculating adjusted 
cohort graduation rates.
    Comments: A number of commenters expressed their support for 
proposed Sec.  200.16(b)(1), permitting a State to include in the 
Academic Achievement indicator, for up to four years, a student who has 
exited English learner status. One such commenter, however, noted 
concern that allowing former English learners to be included may mask 
the performance of the English learner subgroup.
    Discussion: We appreciate the support for proposed Sec.  200.16(b), 
as well as the concern about masking of subgroup performance. Section 
1111(b)(3)(B) of the ESEA, as amended by the ESSA, gives States the 
discretion to include the scores of former English learners on the 
reading/language arts and mathematics assessments for up to four years 
for purposes of English learner subgroup accountability; States are not 
required to do so. In addition, we believe that the masking concern is 
mitigated by Sec.  200.16(d), which excludes former English learners 
from the English learner subgroup for reporting purposes (except those 
directly related to reporting on the indicators where such students may 
be included), thus ensuring that parents and other stakeholders receive 
information about the performance of current English learners through 
the reporting requirement. Further, we note that the inclusion of 
former English learners, if a State chooses to do so, may increase the 
likelihood that schools are held accountable for the English learner 
subgroup, as such students must be counted toward meeting the State's 
minimum number of students for indicators that are based on data from 
State assessments in reading/language arts and mathematics. To that 
end, we are clarifying Sec.  200.16(c)(1)(ii) to specify that this 
provision on counting former English learners towards meeting the 
State's minimum number of students only applies for such indicators.
    Changes: We have revised the regulations in Sec.  200.16(c)(1)(ii) 
to specify that former English learners are included for purposes of 
calculating whether a school meets the State's minimum number of 
students under Sec.  200.17(a) for the English learner subgroup on any 
indicator under Sec.  200.14(b) that uses data from State assessments 
under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
    Comments: One commenter asked that the Department clarify that an 
English learner whose parents refuse services should not be considered 
a former English learner for purposes of proposed Sec.  200.16(b)(1). 
In addition, commenters requested clarification that an English learner 
who exits status during the school year would be considered an English 
learner--not a former English learner--in that school year.
    Discussion: We agree that only students who have exited English 
learner status can be considered as students who have ceased to be 
identified as English learners; English learners whose parents have 
opted the student out of services are still English learners until they 
meet the State's exit criteria. We also agree that students who do meet 
the exit criteria during the school year should count as an English 
learner for that school year. We are therefore clarifying, in Sec.  
200.16(c), that the regulation applies only to students who have met 
the State's exit criteria, beginning with the year after they meet 
those criteria.
    Changes: We have modified Sec.  200.16(c) to clarify how to 
calculate the four years after a student ceases to be identified as an 
English learner (i.e., the four years following the year in which the 
student meets the statewide exit criteria, consistent with Sec.  
299.19(b)(4)).
English Learners With a Disability
    Comments: A few commenters provided suggestions related to English 
learner students who are unable to be assessed in all four domains of 
language on the ELP assessment, as related to the requirement that such 
a student's performance be included in the Progress in Achieving 
English Language Proficiency indicator. Most commenters indicated 
support for proposed Sec.  200.16(b)(2), which requires that if an 
English learner's IEP team or 504 team determines that the student is 
unable to

[[Page 86114]]

be assessed in all four domains of language, the State must include the 
student's performance on the ELP assessment based on the remaining 
domains in which it is possible to assess the student. One commenter 
expressed hope that this exception would truly be an exception, and not 
apply to most English learners with disabilities. Another commenter 
supported the rule but suggested the addition of language indicating 
that the composite score for any student not assessed in the four 
domains of language must be valid and reliable. Additionally, a 
commenter suggested that the Department add language to the proposed 
regulations to allow accommodations for students with disabilities who 
have limited or no oral speech to take the speaking components of State 
assessments generally in ways that measure communication skills rather 
than only oral speech. The commenter provided specific examples of such 
accommodations, including using text-to-speech, sign language, and/or 
augmentative and assistive communication devices.
    One commenter disagreed with the proposed regulation, stating that 
an English learner who has a disability that prevents the student from 
being assessed in one or more domains of language on the ELP assessment 
should be excluded from all calculations.
    Discussion: We appreciate the support we received on this 
provision, as well as the nuanced issues raised by some of the 
commenters. We agree with the commenter indicating that this rule 
should be an exception and only serve the small fraction of English 
learners with disabilities who, because of an identified disability, 
cannot be assessed in one of the four domains of language. For these 
reasons, we are clarifying the final regulations to specify that this 
exception applies only in the case of an English learner with a 
disability that precludes assessment in one or more domains of the ELP 
assessment such that there are no appropriate accommodations for the 
affected domain(s), as determined on an individualized basis by the 
student's IEP team, 504 team, or individual or team designated by the 
LEA to make these decisions under Title II of the ADA. We disagree with 
the commenter who asserted that such students' scores should be 
completely excluded from accountability systems; the exclusion of 
student scores is not only contrary to the statute but can result in a 
lack of proper attention and services for such students.
    We appreciate the concerns of the commenter who requested that we 
add examples of particular accommodations and discuss issues of 
validity and reliability with regard to composite scores that do not 
include performance in all four domains. While we believe this 
information is critical to the field, we believe that the recommended 
clarifications would be best addressed through non-regulatory guidance. 
Further, we note that specific issues regarding the statewide ELP 
assessment, including validity, reliability, and accommodations, are 
outside the scope of these regulations, as they pertain to regulations 
on State assessments under part A of title I.
    Changes: We have revised Sec.  200.16(c)(2) to clarify that--in the 
case of an English learner with a disability that precludes assessment 
in one or more domains of the ELP assessment such that there are no 
appropriate accommodations for the affected domains, as determined on 
an individualized basis by the student's IEP team, 504 team, or 
individual or team designated by the LEA to make these decisions under 
Title II of the ADA--States must, for purposes of measuring performance 
against the Progress in Achieving English Language Proficiency 
indicator, include such a student's performance on the ELP assessment 
based on the remaining domains in which it is possible to assess the 
student.
Recently Arrived English Learners
    Comments: A number of commenters expressed support for proposed 
Sec.  200.16(b)(3)-(4) with respect to including the results from 
recently-arrived English learners in accountability determinations. Of 
those, two commenters suggested extending the flexibility for inclusion 
of such results to three to five years.
    Discussion: We appreciate the support for the regulations on 
recently arrived English learners. The timeframes in proposed Sec.  
200.16(b)(3) are the same as the requirements in section 1111(b)(3)(A) 
of the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: Several commenters expressed concern that the requirement 
in proposed Sec.  200.16(b)(3)(ii)(C), regarding growth on content 
assessments, effectively requires any State that decides to avail 
itself of that option for including recently arrived English learners 
in accountability to use a growth measure in its Academic Progress 
indicator.
    Discussion: The requirements in section 1111(b)(3)(A) of the ESEA, 
as amended by the ESSA, permit the use of growth on content assessments 
in lieu of proficiency for accountability purposes in limited instances 
for recently arrived English learners. The commenters are correct that, 
under the second statutory option (section 1111(b)(3)(A)(ii)(II)(bb), 
and reflected in proposed Sec.  200.16(b)(3)(ii)), in which recently 
arrived English learners are assessed in their first year on the 
reading/language arts as well as the math assessments, States are 
required to include a measure of student growth in the accountability 
system. Under the proposed regulations, a State would have been 
required to include the performance of such recently arrived English 
learners in their second year of enrollment in U.S. schools on those 
content assessments in a growth measure in the Academic Achievement 
indicator for high schools, and in the Academic Progress indicator for 
non-high schools. We recognize that not all States may decide to use a 
measure of growth in the Academic Progress indicator, and are revising 
Sec.  200.16(c)(3)(ii)(C) to clarify that a State may include a measure 
of growth in the second year of enrollment for such an English learner 
in either the Academic Achievement or Academic Progress indicator to 
provide greater flexibility to States with regard to including growth 
for recently arrived English learners in elementary and middle schools.
    Changes: We have revised Sec.  200.16(c)(3)(ii)(C) to allow growth 
for recently arrived English learners in their second year of 
enrollment in elementary and middle schools to be included in either 
the Academic Progress indicator or the Academic Achievement indicator.
    Comments: None.
    Discussion: In reviewing the proposed regulations, we believe it is 
necessary to clarify the uniform statewide procedure for determining 
which assessment and accountability exception, if any, applies to an 
individual recently arrived English learner, for States that choose not 
to apply the same exception to all recently arrived English learners in 
the State. The proposed regulations specified that the statewide 
procedure must take into consideration a student's ELP level, 
consistent with the requirements for setting long-term goals and 
measurements of interim progress for English learners in Sec.  200.13, 
but did not similarly specify the point in time in which a recently 
arrived English learner's ELP level should be examined. As the intent 
was to consider such a student's initial level of ELP--and make a 
decision about which exception would apply for each of the following 
two to three years--we are revising the regulations accordingly. This 
approach is necessary, as a State must determine

[[Page 86115]]

which exception is appropriate during the student's first year of 
enrollment in the U.S. schools in order to comply with the requirements 
of that exception in each succeeding year.
    Changes: We have revised Sec.  200.16(c)(4)(i)(B) to clarify that, 
for States that choose to use a uniform statewide procedure, a recently 
arrived English learner's ELP level at the time of the student's 
identification as an English learner must be taken into account in 
determining whether the exception applies.

Section 200.17 Disaggregation of Data

N-Sizes for Accountability and Reporting
    Comments: We received a number of comments regarding a State's 
determination of the minimum number of students sufficient to yield 
statistical and reliable information and protect student privacy, 
commonly known as the ``minimum n-size.'' A number of commenters 
supported the proposed requirements in Sec.  200.17(a) for information 
that States must submit in their State plans related to n-size, 
including that States submit a justification and receive approval from 
the Department in order to use an n-size that exceeds 30 students for 
accountability purposes. Multiple commenters stated that the proposal 
preserves State flexibility and balances the need for n-sizes to be 
small enough to be inclusive of all required student subgroups in the 
statute, but also large enough to ensure statistical reliability and to 
protect students' privacy. In particular, some commenters noted that 
requiring States to justify n-sizes above 30 will help ensure that 
historically disadvantaged student subgroups are not overlooked nor 
absent from the accountability system.
    Discussion: We appreciate the support of these commenters, and 
agree that the requirements in Sec.  200.17(a) are necessary and 
appropriate to ensure that States establish n-sizes that not only help 
produce valid and reliable accountability determinations, but also 
ensure all students and subgroups of students are meaningfully included 
in annual meaningful differentiation and identification of schools and 
in annual report cards. These provisions provide sufficient flexibility 
for States to determine their own n-sizes for accountability and 
reporting while protecting equity and the focus on educational 
opportunity and excellence for all students.
    Changes: None.
    Comments: A number of commenters disagreed with the proposed 
requirement for a justification to exceed a minimum n-size of 30 
students and recommended eliminating this requirement in the final 
regulation. These commenters recommended that instead States be allowed 
to select, in consultation with stakeholders, an n-size they believe is 
appropriate without any further parameters, or that the Department move 
these provisions to non-regulatory guidance. Some of these commenters 
also objected that a requirement for States to justify their n-size 
exceeds the Department's statutory authority or violates the 
prohibition in section 1111(e)(1)(B)(iii)(VIII) of the ESEA, as amended 
by the ESSA, related to prescribing the minimum number of students a 
State uses for purposes of accountability and reporting.
    Discussion: As discussed previously, we appreciate the support of 
many commenters for the requirement that States submit a justification 
for a minimum n-size exceeding 30 students for review and approval by 
the Department as part of the State plan process. We agree that this 
approach strikes the right balance toward ensuring each State's n-size 
meets all statutory requirements. We also believe this requirement is 
consistent with both the Department's rulemaking authority under GEPA, 
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (as 
previously described in the discussion of Cross-Cutting Issues), and 
the specific provisions of the ESEA, as amended by the ESSA, and that 
it does not violate section 1111(e) of the ESEA, as amended by the 
ESSA. More specifically, the requirement in Sec.  200.17(a)(2)(iii) and 
(3)(v) is not inconsistent with section 1111(e)(1)(B)(iii)(VIII) of the 
ESEA, as amended by the ESSA, because it does not prescribe a specific 
minimum n-size. Rather, the regulations establish a baseline 
expectation that a State will select an n-size of 30 or less, or 
otherwise submit a justification for a higher number. A State that 
selects an n-size that is lower than 30 has significant discretion to 
select any n-size below 30, so long as it meets the requirements of 
section 1111(c)(3) of the ESEA and Sec.  200.17(a)(1)-(2). Further, a 
State retains the flexibility to establish an n-size that is higher 
than 30, provided it demonstrates how the higher number promotes sound, 
reliable accountability decisions consistent with the statutory 
requirements for n-size and the law's focus on accountability for 
subgroup performance at the school level. The requirements in 
Sec. Sec.  200.17(a)(2)(iii) and (3)(v) fall squarely within the scope 
of the title I, part A of the statute and are necessary to reasonably 
ensure that States are able to meet the requirements of section 
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, which requires 
a State to establish a system of meaningful differentiation that 
includes differentiation of any school in which any subgroup of 
students is consistently underperforming, while also meeting the 
requirements of section 1111(c)(3) of the ESEA.
    The State-determined n-size must meet several requirements in the 
statute, including to support valid and reliable accountability 
determinations and data reporting; to protect student privacy; and to 
support the inclusion of each subgroup of students for purposes of 
measuring student progress against the State's long-term goals and 
indicators, annually meaningfully differentiating schools based on 
those indicators, identifying schools with low-performing and 
consistently underperforming subgroups, and providing support for 
improvement in those schools. We agree with commenters that stakeholder 
engagement is critically important in selecting an n-size that works in 
the context of each State; in fact, under the statute and Sec. Sec.  
299.13 and 299.15, States are required to conduct meaningful and timely 
stakeholder engagement to establish their accountability systems, 
including their n-size. That said, we disagree that additional 
parameters for a State to consider in setting its n-size are 
unnecessary or best discussed in non-regulatory guidance only. Setting 
an n-size that is statistically sound and inclusive of subgroups has 
been a challenge for States, and past approaches have, at times, 
prioritized setting a conservative n-size (e.g., 100 students) at the 
expense of providing meaningful subgroup accountability. Current 
regulations in Sec.  200.7, which were updated in 2008, include many 
similar parameters as those in proposed Sec.  200.17(a). These 
regulations were promulgated to provide greater transparency to the 
public in how n-sizes are established and establish a reasonable 
approach for States to balance statistical reliability and privacy with 
the statutory emphasis on disaggregation and subgroup accountability, 
consistent with the NCLB's purpose to close achievement gaps.\6\ These 
reasons remain applicable under the ESEA, as amended by the ESSA, given 
that section 1111(c)(3) requires all States to select an n-size that is 
statistically sound and protects

[[Page 86116]]

student privacy for all purposes under title I, including subgroup 
accountability and reporting. Further, since the 2008 regulations took 
effect, numerous States have lowered their n-sizes, including sixteen 
in the last two years.\7\ We strongly believe that creating a process 
in the State plan for stakeholders to meaningfully engage in 
establishing a State's n-size, including by requiring a State selecting 
an n-size larger than 30 students to provide transparent data and clear 
information on the rationale and impact of its selected n-size, is 
essential to maintain this progress in using lower n-sizes and to 
support a better, and more appropriate balance between validity, 
reliability, student privacy, and maximum inclusion of subgroups of 
students.
---------------------------------------------------------------------------

    \6\ See: 73 FR 64335, 64441-64442 (October 29, 2008).
    \7\ Cardichon, J. (2016). ``Ensuring equity in ESSA: The role of 
n-size in subgroup accountability.'' Alliance for Excellence in 
Education. http://all4ed.org/reports-factsheets/n-size/.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters supported proposed Sec.  200.17(a), under 
which a State must justify in its State plan setting any minimum n-size 
above 30 students, but recommended that the threshold above which a 
justification for the State's proposed n-size is required be lower than 
30 students. The majority of those commenters recommended that any 
proposed n-size above 10 students for accountability and reporting 
purposes (as the proposed regulations would permit a State to select a 
lower n-size for reporting) require a justification in the State plan; 
a few commenters recommended that the Department require a 
justification for any proposed n-size above 20. Some commenters who 
supported a lower number were concerned that a threshold of 30 students 
would provide an incentive for States that are currently using a lower 
n-size to raise their n-size to 30.
    In support of their suggestion that we lower to 10 the threshold 
above which a State must provide further justification for its proposed 
n-size, some commenters cited research, including a 2016 Alliance for 
Excellent Education \8\ report and a 2010 IES report \9\ concluding 
that data based on n-sizes of 5 or 10 students may be reported reliably 
without revealing personally identifying information. To show how a 
lower number would increase subgroup accountability, some commenters 
provided evidence from select States on the number and percentage of 
students that were ``added'' to the accountability system or the number 
and percentage of schools that were newly held accountable for subgroup 
performance when that State lowered its n-size. Other commenters cited 
a general concern about including particular subgroups, such as 
children with disabilities, English learners, or Native American 
students, in the accountability system or ensuring particular schools, 
like rural schools, were held accountable for subgroup performance. 
Others who recommended a threshold of 10 pointed to the Department's 
proposed rule, Equity in IDEA, which suggested a minimum n-size of not 
more than 10 as the standard methodology to determine whether there is 
significant disproportionality in each State and its LEAs, based on 
race or ethnicity due to overrepresentation in the identification, 
placement, and discipline of children with disabilities. Another 
commenter believed that lowering the threshold to 10 would improve the 
ability to make cross-State comparisons based on educational data.
---------------------------------------------------------------------------

    \8\ Cardichon, J. (2016). ``Ensuring equity in ESSA: The role of 
n-size in subgroup accountability.'' Alliance for Excellence in 
Education. http://all4ed.org/reports-factsheets/n-size/.
    \9\ U.S. Department of Education. Institute of Education 
Sciences, National Center for Education Statistics (2010). 
``Statistical Methods for Protecting Personally Identifiable 
Information in Aggregate Reporting.'' Brief 3, NCES 2011-603. 
https://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2011603.
---------------------------------------------------------------------------

    Finally, a few commenters challenged the research basis for the 
proposal of 30 as the n-size above which a justification is required--
but instead of recommending a lower threshold, the commenters either 
requested that the final regulations provide States greater flexibility 
in selecting an n-size, or require States to describe how their n-size 
minimizes error and provides for adequate validity and reliability of 
school-level reporting and accountability decisions generally.
    Discussion: We appreciate the support of commenters for our 
approach to State-determined minimum n-sizes, including requiring a 
justification from States for proposing to use an n-size above a 
certain threshold, and agree with the goal of maximizing subgroup 
accountability; we strongly encourage States to use the lowest possible 
n-size that will produce valid and statistically sound data, protect 
student privacy, and meaningfully include all subgroups of students--
which may well be lower than 30 students in many States. However, we do 
not believe that the current state of practice or current research on 
minimum n-sizes supports requiring States to submit a justification of 
an n-size below 30 students for accountability purposes, although this 
could change in the future, as additional research is produced and as 
evidence from State implementation of disaggregated accountability and 
reporting under the ESEA is gathered. We also disagree with commenters 
that research suggests 30 is an inappropriate threshold altogether and 
preferred for States to provide a general description of how their n-
size meets the statutory requirements for validity and reliability.
    The Department believes that requiring additional information for 
an n-size above 30 students is warranted, because, based on basic 
statistics and research analyses, an n-size that exceeds 30 is less 
likely to meet the requirements in the statute, particularly those 
requiring States to adopt school accountability systems that reflect 
the performance of individual subgroups of students, and thus, requires 
justification as part of the State plan review and approval process. 
Validity and reliability are not the only statutory and regulatory 
requirements for a State in selecting its n-size; these criteria must 
be balanced with the requirement for an n-size that is small enough to 
provide for the inclusion of each student subgroup in school-level 
accountability and reporting. Not only is this critical to maintain 
educational equity and protect historically underserved populations of 
students, but it is also a clear purpose of accountability systems 
under section 1111(c) of the ESEA, as amended by the ESSA, as 
disaggregation is required when measuring student progress against the 
State's long-term goals and indicators and notifying schools with a 
consistently underperforming subgroup of students for targeted support 
and improvement. Thus, it is equally important for States to justify 
how their n-size preserves accountability for subgroups as it is for 
States to demonstrate validity and reliability as a result of their 
chosen n-size. Research demonstrates how n-sizes larger than 30 require 
further justification to show that subgroups of students will be 
included. For example, under NCLB, 79 percent of students with 
disabilities were included in the accountability systems of States with 
an n-size of 30, but only 32 percent of students with disabilities were 
included in States with an n-size of 40.\10\ Similarly, a more recent 
analysis

[[Page 86117]]

of California's CORE school districts,\11\ found that only 37 percent 
of African American students' math scores are reported at the school-
level with an n-size of 100 students, but 88 percent of such students 
were included using an n-size of 20 students. For students with 
disabilities, the difference was larger: 25 percent of students with 
disabilities were reported at the school-level under an n-size of 100, 
while 92 percent were included with an n-size of 20. Other reports have 
demonstrated that an n-size of 60 can potentially exclude all students 
with disabilities from a State's accountability system.\12\
---------------------------------------------------------------------------

    \10\ Harr-Robins, J., Song, M., Hurlburt, S., Pruce, C., 
Danielson, L., & Garet, M. (2013). ``The inclusion of students with 
disabilities in school accountability systems: An update (NCEE 2013-
4017).'' Washington, DC: National Center for Education Evaluation 
and Regional Assistance, Institute of Education Sciences, U.S. 
Department of Education, pp. 24-26.
    \11\ Hough, H., & Witte, J. (2016). ``Making students visible: 
Comparing different student subgroup sizes for accountability.'' 
CORE-PACE Research Partnership, Policy Memo, 16-2.
    \12\ Simpson, M. A., Gong, B., & Marion, S. (2006). ``Effect of 
minimum cell sizes and confidence interval sizes for special 
education subgroups on school-level AYP determinations.'' Council of 
Chief State School Officers; Synthesis Report 61. National Center on 
Educational Outcomes, University of Minnesota.
---------------------------------------------------------------------------

    In addition, while there are many desirable and stable statistical 
properties that are attributable to an n-size of 30, because that is 
the sample size at which a distribution approaches normality (an 
assumption for strong validity for most statistical tests of inference 
based on the Central Limit Theorem), the subgroups of students that are 
included for school accountability and reporting purposes are not, 
technically, a sample. Because a State is required to measure the 
performance of all students and all students in each subgroup of 
students in calculating the accountability indicators for a given 
school, the data used for accountability are representatives of a 
census, or universe, of the entire school population for any given year 
on any given measure. While collecting data for an entire population 
does not mitigate all potential sources of error in the data, it does 
mitigate one very large one: Sampling error because the data are not 
representative of the school as a whole.
    Accordingly, the Department does not dispute that an n-size lower 
than 30 students, such as 10 or 20, may also be valid, reliable, and 
maximally inclusive of subgroups--especially for reporting purposes--
which is why we believe further justification in a State selecting such 
an n-size is unnecessary. In specifying 30 as the threshold, we were 
not only considering the current state of research, but also current 
practice; only eight States use an n-size for accountability greater 
than 30 students,\13\ so we believe a threshold of 30 will not add 
burden to the State plan for most States and recognizes the significant 
progress many States have made in recent years to lower their n-sizes 
below 30 students.\14\ We also do not believe that establishing a 
threshold of 30 students will encourage States currently using a lower 
n-size to move to a higher number; such States have established lower 
n-sizes in response to their own needs and circumstances, and not 
because of any current statutory or regulatory provision, and thus 
would be unlikely to revisit earlier decisions in response to a 
regulation that would not require such action. In sum, after examining 
these trends in practice and research, we believe a lower threshold 
would mostly result in greater burden without the desired outcome of 
commenters (lower n-sizes), because, based on the current the state of 
knowledge, many States could likely provide a solid justification for 
selecting an n-size between 10 and 30 students in their State plans.
---------------------------------------------------------------------------

    \13\ Cardichon, J. (2016). ``Ensuring equity in ESSA: the role 
of n-size in subgroup accountability.'' Alliance for Excellence in 
Education. http://all4ed.org/reports-factsheets/n-size/.
    \14\ In the last two years alone, sixteen States and the 
California CORE districts lowered their n-size for either reporting 
or accountability purposes: Alaska from 26 to 5; Arizona from 40 to 
30; Connecticut from 40 to 20. California's CORE districts from 100 
to 20; Florida from 30 to 10; Georgia from 30 to 15; Idaho from 34 
to 25; Illinois from 45 to 10; Maine from 20 to 10. Minnesota from 
40 to 10 for reporting, and to 20 for accountability; Mississippi 
from 30 to 10; Nevada from 25 to 10; North Carolina from 40 to 30; 
Pennsylvania from 30 to 11; Rhode Island from 45 to 20; South 
Carolina from 40 to 30; and Texas from 50 to 25.
---------------------------------------------------------------------------

    We also note that Sec.  200.17(a)(2)(iv) would permit States to use 
a lower n-size, such as 10, for reporting, while using a different n-
size for accountability. Further, Sec.  200.20(a) permits a State to 
average school-level data across grades or over time for particular 
accountability purposes, including calculating each indicator, so that 
a State choosing to take advantage of this flexibility may sum the 
number of students with valid data in a particular subgroup and 
increase the likelihood that a school meets the minimum n-size (see 
final Sec.  200.20(a)(1)(A)). For example, the indicators for a school 
that served a total of ten English learners for each of the last three 
years will, if an SEA chooses to combine results over three years, be 
calculated as a combined average of its data from all grades and years; 
the LEA would have 30 students in this subgroup.
    This decision to maintain a threshold of 30, above which a State 
must justify its proposed n-size, is independent of the different 
analysis and proposal accompanying the Equity in IDEA proposed 
regulations, which was based on the context and experience of the IDEA 
and not the statewide accountability systems required by the ESEA. 
Finally, as the ESEA provides States with discretion to develop their 
own challenging academic standards and aligned assessments, ambitious 
long-term goals and measurements of interim progress, and unique 
measures and indicators for differentiation of schools, it is not clear 
that simply setting a lower n-size would support meaningful cross-State 
comparisons, since even if there was additional information available 
at a school-level for particular subgroups, such comparisons would be 
meaningless across States as the underlying measures are, more often 
than not, unique to each State.
    Changes: None.
    Comments: A few commenters recommended that the Department require 
all States, not only those that propose n-sizes greater than 30 
students, to submit data on the number and percentage of schools that 
would not be held accountable for the performance of particular 
subgroups of students based on the selected n-size.
    Discussion: While the final regulations require States that request 
to use an n-size greater than 30 students to submit data on the number 
and percentage of schools that would not be held accountable for the 
results of students in each subgroup described in Sec.  200.16(a)(2), 
requiring all States to submit this information would unnecessarily 
increase burden on States that select an n-size that is likely to meet 
the law's requirements for a threshold that is valid, reliable, and 
maximally inclusive of all students and each subgroup of students, as 
discussed previously. However, in light of these comments on the 
importance of comparative data on school-level accountability for 
subgroups, we are revising Sec.  200.17(a)(3)(v), to provide that a 
State's justification of an n-size above 30 includes both data on the 
number and percentage of schools in the State that would not be held 
accountable for the results of subgroups described in Sec.  
200.16(a)(2) under its proposed n-size as well as comparative data on 
the number of schools that would not be held accountable for the 
performance of those subgroups with an n-size that is 30.
    Changes: We have revised Sec.  200.17(a)(3)(v) to clarify that a 
State's justification for an n-size above 30 students includes data on 
the number

[[Page 86118]]

and percentage of schools that would not be held accountable for 
results from each subgroup based on the State's proposed n-size, 
compared to data on the number and percentage of schools in the State 
that would not be held accountable for each subgroup if the State had 
selected an n-size of 30 students.
    Comments: Some commenters recommended that all States be required 
to submit data on the number and percentage of all students and 
subgroups described in Sec.  200.16(a)(2) for whose results a school 
would not be held accountable for each indicator in the State 
accountability system. In addition, a few of these commenters 
recommended making this information available on SEA and LEA report 
cards in addition to the State plan.
    Discussion: Proposed Sec.  200.17(a)(3)(iv) requires all States in 
their State plans to submit information regarding the number and 
percentage of all students and students in each subgroup of students 
for whose results a school would not be held accountable in the State 
accountability system for annual meaningful differentiation under Sec.  
200.18. As annual meaningful differentiation of schools is based on all 
of the State's indicators, we believe that it would be unnecessarily 
burdensome for all States to provide an indicator-by-indicator analysis 
on the number and percentage of students in each subgroup that are 
included in the accountability system, or for States to provide this 
information in two places, the State plan and their report cards. We 
encourage States, as part of the process of meaningful and timely 
consultation in developing new accountability systems as described in 
Sec. Sec.  299.13 and 299.15, to conduct any analyses, in consultation 
with stakeholders and technical experts, that they believe will be 
useful in setting an n-size that is valid, reliable, consistent with 
protecting student privacy, and maximally inclusive of all students and 
each subgroup of students.\15\ We also note that States may provide 
additional analyses or data on their selected n-size in their State 
plans, or make such additional analyses and data public, if they so 
choose.
---------------------------------------------------------------------------

    \15\ See, for example: https://education.ohio.gov/getattachment/Topics/Every-Student-Succeeds-Act-ESSA/Nsize-Topic-Discussion-Guide.pdf.aspx.
---------------------------------------------------------------------------

    Changes: None.
    Comments: A few commenters recommended prohibiting the use of an n-
size that exceeds 30 students.
    Discussion: We believe that restricting n-sizes above 30 students 
would be inconsistent with section 1111(e)(1)(B)(iii)(VIII) of the 
ESEA, which prohibits the Department from prescribing a State's n-size 
so long as the State-determined number meets all requirements of 
section 1111(c)(3).
    Changes: None.
    Comments: A few commenters recommended prohibiting States from 
using n-sizes over 10 students for reporting purposes or requiring 
States to use a lower n-size for reporting than for accountability 
purposes.
    Discussion: The Department agrees that States should use an n-size 
that is no larger than necessary to protect student privacy for 
reporting purposes, especially given the importance of providing 
transparent and clear information on State and LEA report cards that 
includes disaggregated information by each subgroup. However, we 
decline to establish a specific threshold for reporting purposes, 
because States have demonstrated a commitment to using a low n-size 
(e.g., 10 or lower) for reporting purposes without regulations 
requiring them to do so. In addition, we believe that restricting n-
sizes for reporting purposes above 10 students would be inconsistent 
with section 1111(e)(1)(B)(iii)(VIII) of the ESEA, which prohibits the 
Department from prescribing a State's n-size so long as the State-
determined number meets all requirements of section 1111(c)(3). We also 
disagree with the recommendation to require a lower n-size for 
reporting, as this could require States that have set a similarly low 
n-size (e.g., 10 students) for both purposes to increase their n-size 
for accountability, and believe the decision to use a lower reporting 
n-size is best left to States.
    Changes: None.
    Comments: Some commenters opposed the requirement in proposed Sec.  
200.17(a)(2)(ii) that the n-size be the same for all accountability 
purposes, including for each indicator and for calculating 
participation rates on assessments, believing that the proposed 
requirements are overly prescriptive and unnecessary to ensure States 
comply with the law's requirements for establishing n-sizes. In 
addition, one commenter disagreed with other provisions in proposed 
Sec.  200.17(a)(2), including the requirement that the State-determined 
n-size be the same for all students and for each subgroup of students 
and the option of using a lower n-size for reporting purposes.
    Discussion: We disagree with the commenters that the proposed 
requirements in Sec.  200.17(a)(2) are unnecessary to ensure that 
States set valid and reliable n-sizes consistent with the law's 
requirements. First, the requirement in Sec.  200.17(a)(2)(i) for the 
n-size established by each State to be the same for all students and 
for each subgroup of students is statutory (section 1111(c)(3)(A)(i) of 
the ESEA, as amended by the ESSA) whenever disaggregation is required 
under part A of title I. Second, we believe it is critical for a State 
to use the same n-size for all accountability purposes, including for 
each indicator in the accountability system, as required under Sec.  
200.17(a)(2)(ii), in order to ensure fairness and equity in 
accountability decisions and the maximal inclusion of all students in 
all indicators (with the exception of the Progress in Achieving English 
Language Proficiency indicator, which applies only to English 
learners). For example, allowing a State to set a higher n-size for a 
School Quality or Student Success indicator would reduce the number of 
schools held accountable for student performance on these new 
indicators and undermine a key goal of the ESEA, as amended by the 
ESSA, that school performance determinations be based on broader 
multiple measures of student and school performance. Finally, as 
discussed previously, we believe that allowing a lower n-size for 
reporting is both reflective of current practice in numerous States, 
encourages States to consider ways they can report results for as many 
subgroups as possible, and consistent with the statutory requirements 
related to minimum n-size.
    Changes: None.
    Comments: A few commenters objected to the Department's proposal 
that a State explain how other components of its accountability system 
interact with the State's n-size to affect the statistical reliability 
and soundness of the State's accountability system and to ensure the 
maximum inclusion of all students and each subgroup. They recommended 
eliminating this requirement because they believe it exceeds the 
Department's legal authority and unnecessarily increases burden on 
States.
    Discussion: We believe these requirements, which mirror similar 
requirements in current regulations regarding a State's n-size used for 
accountability, continue to be reasonably necessary to ensure that this 
key aspect of a State's accountability system--its selected n-size for 
accountability purposes--is consistent with one of the stated purposes 
of title I of the ESEA, as amended by the ESSA: To close educational 
achievement gaps. This purpose cannot be accomplished without subgroup 
accountability and, thus, it is necessary that the regulations 
emphasize how States can consider

[[Page 86119]]

ways to maximize inclusion of student subgroups comprehensively, 
looking across the design of their accountability system. For example, 
averaging school-level data across grades or years for calculating the 
indicators, as permitted under Sec.  200.20(a), is one tool a State can 
use to maximize the inclusion of subgroups, as States choosing to use 
this procedure combine, for any measure in an indicator, the number of 
students with valid data in the applicable subgroup across a whole 
school, or the number of students in the subgroup with valid data over 
up to three years. As a result, a school is much more likely to meet a 
State's minimum n-size for a particular subgroup because it can sum the 
amount of available data (across grades and across years) for the 
subgroup on each indicator as described in Sec.  200.20(a)(1)(A). 
Further, making this information available in the State plan is 
necessary to reasonably ensure that the public will be able to consult 
on the State's n-size (consistent with section 1111(c)(3)(A)(ii) of the 
ESEA) and better understand how schools are being held accountable for 
the performance of students, including each subgroup. Accordingly, 
these requirements fall within the Department's rulemaking authority 
under GEPA and the DEOA as well as under section 1601(a) of the ESEA, 
as amended by the ESSA, and, as they are within the scope of section 
1111(c) of the ESEA, as amended by the ESSA, they do not violate 
section 1111(e) of the ESEA, as amended by the ESSA (see further 
discussion under the heading Cross-Cutting Issues). Finally, because of 
the importance of n-sizes for the validity, reliability, and 
transparency of statewide accountability systems, the benefits of these 
requirements outweigh the burden on States of complying with them.
    Changes: None.
    Comments: Some commenters recommended that LEAs be added to the 
list of required stakeholders in section 1111(c)(3)(A)(ii) with whom 
States must collaborate in determining their n-sizes.
    Discussion: LEAs are one of the stakeholders States must consult in 
the overall development of the State plan consistent with Sec. Sec.  
299.13 and 299.15, which includes the State's accountability system and 
determination of n-size as described in Sec.  299.17.
    Changes: None.
    Comments: One commenter questioned why the proposed regulations 
request a justification from States that select an n-size above 30 
students in Sec.  200.17, but permit a high school with fewer than 100 
students that is identified for comprehensive support and improvement 
due to low graduation rates to forego implementation of a comprehensive 
support and improvement plan under Sec.  200.21.
    Discussion: The State discretion for small high schools in Sec.  
200.21(g) is a statutory requirement in section 1111(d)(1)(C)(ii) of 
the ESEA, as amended by the ESSA, and is separate and unrelated to the 
requirements in section 1111(c)(3)(A) of the ESEA for States to 
establish an n-size for any purpose where disaggregated data are 
required under part A of title I.
    Changes: None.
    Comments: One commenter requested that the Department issue non-
regulatory guidance in addition to Sec.  200.17 to better support 
States in reporting information that can be disaggregated for the 
maximum number of subgroups, particular if a school or LEA does not 
meet the State's n-size.
    Discussion: We appreciate the commenter's suggestion and agree that 
these best practices would be best discussed in non-regulatory 
guidance.
    Changes: None.
    Comments: None.
    Discussion: In reviewing the proposed regulations, the Department 
believes it is necessary to clarify that if a State elects to use a 
lower n-size for reporting purposes than it does for accountability 
purposes, it must do so in a way that continues to meet the statutory 
requirement under section 1111(b)(3)(A)(i) and Sec.  200.17(a)(2)(i) 
for the State to use the same minimum number of students for all the 
students group and for each subgroup of students for provisions under 
title I that require disaggregation. The intent of this flexibility in 
the proposed regulations was to permit a State, consistent with current 
practice, to use an n-size for reporting purposes (e.g., 6 students) 
that the State may feel is too low for accountability purposes but will 
maximize transparency and the amount of publicly reported data on 
subgroup performance--not to exempt the State from other critical 
requirements under proposed Sec.  200.17. Because a consistent n-size 
for all subgroups is a statutory requirement, we believe it is 
important to reiterate that it applies to any n-size used for either 
reporting or accountability under title I of the ESEA.
    Changes: We have revised Sec.  200.17(a)(2)(iv) to clarify that a 
State that elects to use a lower n-size for reporting purposes must 
continue to meet the requirement to use the same n-size for the all 
students group and for each subgroup of students for purposes of 
reporting.
Personally Identifiable Information
    Comments: Several commenters pointed out that a minimum n-size 
lower than 30 students has the ability to adequately protect student 
privacy, often citing a 2010 Institute of Education Sciences (IES) 
report \16\ concluding that data based on n-sizes of 5 or 10 students 
may be reported reliably without revealing personally identifying 
information.
---------------------------------------------------------------------------

    \16\ U.S. Department of Education. Institute of Education 
Sciences, National Center for Education Statistics (2010). 
``Statistical Methods for Protecting Personally Identifiable 
Information in Aggregate Reporting.'' Brief 3, NCES 2011-603. 
https://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2011603.
---------------------------------------------------------------------------

    Discussion: While we recognize that suppression of data for small 
subgroups of students is often necessary to protect the privacy of 
individuals in those subgroups, we maintain that the specific n-size 
adopted by States is only one component of a broader methodology for 
protecting privacy in public reporting. In most cases, suppression of 
data about small subgroups must be accompanied with the application of 
additional statistical disclosure limitation methods (e.g., 
complementary suppression, blurring, top/bottom-coding) to effectively 
protect student privacy. Selection of a specific n-size (e.g., 5 
students versus 10 students) to protect student privacy is secondary to 
the proper application of these additional methods.
    In response to those that believe a lower threshold is appropriate, 
because such a lower number (e.g., 10 students) is sufficient to 
protect student privacy, the proposal that States justify and receive 
approval to use an n-size exceeding 30 students is not driven solely by 
privacy considerations. Privacy protections must also be considered 
within the larger context of selecting an n-size that meets the 
statutory requirements that all disaggregated data used for 
accountability and reporting purposes be of sufficient size to yield 
statistically sound information and be small enough to maximally 
include all students and subgroups of students.
    Changes: None.
    Comments: Recognizing the complexity of protecting privacy in 
public reporting, several commenters requested that the Department 
provide guidance to States and LEAs on this issue.
    Discussion: The Department previously released several technical 
assistance resources on this subject through the Privacy Technical 
Assistance Center (PTAC, available at http://ptac.ed.gov), and offers 
further

[[Page 86120]]

guidance and targeted technical assistance on disclosure methods 
through PTAC's Student Privacy Help Desk ([email protected]). The 
Department also intends to release additional non-regulatory guidance 
in the future on this subject to assist educational agencies and 
institutions with their reporting requirements under the ESEA, as 
amended by the ESSA.
    Changes: None.
    Comments: Several commenters questioned the Department's authority 
to expand privacy protections under this section to anyone other than 
students, as the Family Educational Rights and Privacy Act only 
protects personally identifiable information from students' education 
records and does not extend similar protections to school personnel.
    Discussion: The provision in Sec.  200.17(b) merely reiterates 
section 1111(i) of the ESEA, as amended by the ESSA, which prohibits 
the reporting of disaggregated information if it would reveal 
personally identifiable information about teachers, principals, or 
other school leaders. As Sec.  200.17(b) reiterates this statutory 
requirement, it is being issued consistent with the Department's 
rulemaking authority under GEPA and the DEOA and under section 1601(a) 
of the ESEA, as amended by the ESSA, as the regulation is necessary to 
reasonably ensure compliance with section 1111(i) of the statute.
    Changes: None.

Section 200.18 Annual Meaningful Differentiation of School Performance: 
Performance Levels, Data Dashboards, Summative Determinations, and 
Indicator Weighting

Summative Ratings
    Comments: Many commenters supported the proposed regulations as 
consistent with the law's requirement for all States to meaningfully 
differentiate schools and identify schools for support and improvement, 
including the lowest-performing five percent of title I schools, using 
a methodology that is based on all of the indicators and affords 
certain indicators ``much greater'' weight. These commenters further 
noted that the statute, in effect, includes three summative rating 
categories: The two categories of schools that must implement 
improvement plans (i.e., comprehensive support and improvement and 
targeted support and improvement schools), and a third category of 
schools, those not identified for comprehensive or targeted support and 
improvement.
    Some commenters recommended that the Department clarify that a 
State may use these classifications of schools in the statute (i.e., 
comprehensive support and improvement, targeted support and 
improvement, not identified for support and improvement) to meet the 
proposed requirement in Sec.  200.18 to give all schools a summative 
rating from among at least three categories. These commenters 
recommended conforming edits throughout the regulation, including in 
proposed Sec.  200.19, to refer to a State's summative 
``determination'' or ``classification,'' as an alternative to a 
``rating.'' Further, they suggested we clarify that a State could use a 
``dashboard'' approach to make those determinations, although a State 
would also be permitted to create a separate and distinct methodology, 
like a numerical index.
    Alternatively, several other commenters stated that the requirement 
for a summative rating was inconsistent with the statute, an overreach 
of the Department's authority, and at odds with the law's intent to 
provide more flexibility and create less burden for States with regard 
to accountability. Some of these commenters also asserted that the 
requirement for a summative rating violates section 
1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA, which 
provides that nothing in the ESEA, as amended by the ESSA, authorizes 
or permits the Secretary to prescribe the specific methodology used by 
States to meaningfully differentiate or identify schools under title I, 
part A.
    Discussion: We appreciate commenters' support and agree with those 
who recommended clarifying that (1) the requirement for each State to 
provide schools with a summative rating from among at least three 
rating categories is consistent with the law's requirements for school 
identification, and (2) a State may satisfy the summative rating 
requirement by making these statutorily required identification 
determinations its summative rating for each school, as opposed to 
developing a separate system of ratings that uses different categories 
of schools for annual meaningful differentiation. Given that these 
determinations in the statute are one way a State may meet the 
requirement to provide information on a school's overall level of 
performance, we are revising the final regulation to clarify that the 
system of annual meaningful differentiation must produce a single 
summative ``determination'' for each school that ``meaningfully 
differentiates'' between schools. Because the ESEA, as amended by the 
ESSA, requires identification of three summative categories of schools 
based on all indicators--comprehensive support and improvement, 
targeted support and improvement, and schools that are not identified--
we are further renumbering and revising Sec.  200.18(a)(4) to note that 
a State's summative determinations for each school may be those three 
categories. We believe the final regulation, as with the proposed 
regulation, promotes State flexibility in designing accountability 
systems, so that multiple approaches may be used, with different 
categories, such as A-F grades, numerical scores, accreditation 
systems, or other school classifications. A State choosing to use one 
of these approaches would still be required to identify comprehensive 
support and improvement and targeted support and improvement schools as 
required under the statute.
    Given the clarification in Sec.  200.18(a)(4) that a State may meet 
this requirement by identifying, at a minimum, the two statutorily 
required categories of schools along with a third category of schools 
that are not identified, we believe it is clear that this regulation 
falls squarely within the Department's rulemaking authority under GEPA, 
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and 
within the scope of section 1111(c) of the ESEA, as amended by the 
ESSA, consistent with section 1111(e) of the ESEA, as amended by the 
ESSA (see further discussion of these authorities in the discussion of 
Cross-Cutting Issues). Moreover, each State retains significant 
discretion to design its methodology and determine how it will reach a 
single summative determination for each school. For example, one State 
could develop a two-dimensional matrix, with schools assigned an 
overall performance category based on how they fare on each dimension, 
while another State could design a numerical index that awards points 
for each indicator, with an overall score driving the summative 
determination, while yet another State could assign each school a 
determination based on the number of indicators on which the school 
performs at a particular level or another set of business rules. A 
State also has discretion to assign a single grade or number or to 
develop some other mechanism, including one based on a data 
``dashboard,'' for reaching a single summative determination--
categories of schools like ``priority'' and ``focus'' schools that 
States have used under ESEA flexibility, for example, would

[[Page 86121]]

also be permitted.\17\ Given the broad flexibility available to a State 
for meeting this requirement, Sec.  200.18(a)(4), as renumbered, is not 
inconsistent with section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended 
by the ESSA, because it does not prescribe a particular methodology 
that a State must use to annually differentiate schools.
---------------------------------------------------------------------------

    \17\ ESEA Flexibility refers to the set of waivers from certain 
provisions of the ESEA, as amended by the NCLB, that the Department 
offered to States from the 2011-2012 through 2015-2016 school years. 
Given the overdue reauthorization of the ESEA, as amended by the 
NCLB, President Obama announced in September 2011 that the 
Department would grant these waivers to qualified States--those 
adopting college- and career-ready expectations for all students; 
creating differentiated accountability systems that target the 
lowest-performing schools, schools with the largest achievement 
gaps, and other schools that are not meeting targets for at-risk 
students; and developing and implementing teacher and principal 
evaluation and support systems that take into account student 
growth, among multiple measures, and are used to help teachers and 
principals improve their practices. In total, 43 States, the 
District of Columbia, and Puerto Rico were awarded ESEA Flexibility. 
For more information, see: http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html.
---------------------------------------------------------------------------

    Changes: We have renumbered and revised Sec.  200.18(a)(4) to 
clarify that a State must provide each school, as part of its system of 
meaningful differentiation, a single summative ``determination,'' which 
may either be (1) a unique determination, distinct from the categories 
of schools described in Sec.  200.19, or (2) a determination that 
includes the two categories of schools that are required to be 
identified in Sec.  200.19 (i.e., schools identified for comprehensive 
support and improvement and schools identified for targeted support and 
improvement) and those that are not identified. We have also made 
conforming edits throughout Sec.  200.18 and other sections of the 
final regulations that reference school summative determinations. In 
addition, we have clarified that the summative determination must 
``meaningfully differentiate'' between schools.
    Comments: We received a number of comments supporting the 
requirement in proposed Sec.  200.18(b)(4) for a State's system of 
annual meaningful differentiation to result in a single rating, from 
among at least three rating categories, to describe a school's 
summative performance across indicators because it would increase 
transparency for parents and stakeholders by communicating complex data 
and information on school quality, across a number of metrics, through 
a single overall rating. These commenters generally expressed concerns 
that other approaches absent a summative rating, such as a data 
``dashboard,'' would make it difficult for parents to understand the 
overall performance of their child's school, particularly to determine 
how the results from the dashboard led to the school's identification 
for comprehensive or targeted support and improvement. Other commenters 
noted that summative ratings are widely used in other sectors precisely 
because they communicate complex information succinctly and effectively 
in a manner that empowers stakeholders and guides decision-making; this 
view is consistent with that of another commenter who cited research 
that suggests parents prefer summative ratings like A-F grades.\18\
---------------------------------------------------------------------------

    \18\ See: http://mclaughlinonline.com/pols/wp-content/uploads/2014/05/NATL-CSS-X-TABS-PRIMARY-4-18-14.pdf.
---------------------------------------------------------------------------

    Many commenters noted that a summative rating and detailed 
indicator-level information in a ``dashboard'' are not mutually 
exclusive, and voiced support for a summative rating requirement that, 
as provided for in the proposed regulations, also requires performance 
on each indicator to be reported, so that parents and the public have 
information on overall school quality in the summative rating--which 
would drive identification of schools--alongside more detailed 
information breaking down performance on each indicator--which would 
drive continuous improvement. A number of commenters also cited the 
benefits of summative ratings for school improvement efforts, asserting 
that such ratings support meaningful differentiation of schools, 
promote successful interventions by helping direct resources to schools 
that are most in need of support, and, as suggested by research, 
motivate and are associated with successful efforts to improve and 
achieve a higher rating.\19\
---------------------------------------------------------------------------

    \19\ See, for example, Dee, Thomas S., & Jacob, B. (May 2011). 
``The impact of No Child Left Behind on student achievement.'' 
Journal of Policy Analysis and Management, 30(3), 418-446; Carnoy, 
Martin, & Loeb, S. (2002). ``Does external accountability affect 
student outcomes? A cross-state analysis.'' Educational Evaluation 
and Policy Analysis, 24(4), 305-31; Ahn, T., & Vigdor, J.L. 
(September 2014). ``The impact of No Child Left Behind's 
accountability sanctions on school performance: Regression 
discontinuity evidence from North Carolina.'' NBER Working Paper No. 
w20511; Hanushek, Eric A., & Raymond, M.E. (2005). ``Does school 
accountability lead to improved student performance?'' Journal of 
Policy Analysis and Management, 24(2), 297-327; Winters, Marcus A. 
(2016). ``Grading Schools Promotes Accountability and Improvement: 
Evidence from New York City, 2013-2015.'' Manhattan Institute; 
Burgess, Simon, Wilson, D., and Worth J. (2013); and ``A natural 
experiment in school accountability: The impact of school 
performance information on pupil progress.'' Journal of Public 
Economics, 106(C), 57-67.
---------------------------------------------------------------------------

    However, numerous other commenters suggested removing the 
requirement for a single rating, because they believe it undermines the 
value and transparency of an accountability system based on multiple 
measures--including the addition of new indicators under the ESEA, as 
amended by the ESSA--by reducing school performance, and any subsequent 
improvement efforts, to a single label. The commenters asserted parents 
and educators alike would find data on individual indicators more 
useful and straightforward than a single rating, particularly when 
designing improvement strategies targeted to a school's needs. Other 
commenters suggested that requiring a summative rating for each school 
would result in one-size-fits-all accountability systems that 
discourage innovative accountability approaches, such as data 
``dashboards,'' and demoralize educators by promoting punitive 
accountability systems that are focused on ranking schools against each 
other, which some linked with increased staff turnover. Many of these 
commenters associated a summative rating with a requirement to assign 
all schools an A-F letter grade or a single score, and noted their 
objections to such methodologies. One commenter requested the 
Department allow States to either award schools with a single, overall 
summative determination, or multiple determinations (i.e., one for each 
indicator), believing an approach that allowed for ``determinations'' 
instead of ratings would provide greater flexibility for States to 
choose how they communicate areas in need of improvement in a school.
    Finally, a number of commenters believed the requirement for a 
single summative rating would create arbitrary, invalid, and unfair 
distinctions among schools or objected to such a requirement as 
inconsistent with research on school performance and improvement.\20\
---------------------------------------------------------------------------

    \20\ See, for example, Lipnevich, A.A., and Smith, J.K. (June 
2008). ``Response to assessment feedback: The effects of grades, 
praise, and source of information.'' Princeton, NJ: ETS; National 
Research Council. Incentives and Test-Based Accountability in 
Education. Washington, DC: The National Academies Press, 2011. 
doi:10.17226/12521; and the Oklahoma Center for Education Policy and 
the Center for Educational Research and Evaluation. (January 2013). 
``An Examination of the Oklahoma State Department of Education's A-F 
Report Card.''
---------------------------------------------------------------------------

    Discussion: We appreciate the strong support from many commenters 
for the summative rating requirement we proposed as part of each 
State's system of annual meaningful differentiation of schools. We also 
acknowledge the strong objections raised by many other

[[Page 86122]]

commenters. However, we believe some of the concerns expressed by 
commenters may be rooted in misconceptions about the requirement, as 
proposed, which we have clarified in these final regulations, as 
previously described.
    We agree that the accountability requirements in the ESEA, as 
amended by the ESSA, move away from a one-size-fits-all approach by 
requiring multiple indicators of school success, beyond test scores and 
graduation rates, to play a factor in accountability decisions. 
However, we disagree that a summative determination will undermine 
these positive steps, diminish the ability of States to develop 
innovative models, and lead to a narrow focus on ranking schools--or on 
test scores or overall school grades--at the expense of other 
indicators. Under the regulations, States can design a number of 
approaches to produce an overall determination, based on all 
indicators, for each school--including an approach that utilizes data 
``dashboards,'' A-F school grades, a two-dimensional matrix based on 
the accountability indicators, or other creative mechanisms to 
communicate differences in overall school quality to parents and the 
public. These approaches must also be developed through meaningful and 
timely stakeholder engagement, including parents and educators, as 
described in Sec. Sec.  299.13 and 299.15.
    Moreover, we believe the requirement for a summative determination 
is most consistent with research on what makes an effective 
accountability and improvement system. For example, in addition to 
research cited in the NPRM, additional studies have shown the positive 
benefits of providing schools with a summative determination on student 
academic achievement.\21\
---------------------------------------------------------------------------

    \21\ See, for example, Winters, Marcus A. (2016). ``Grading 
Schools Promotes Accountability and Improvement: Evidence from New 
York City, 2013-2015.'' Manhattan Institute; Rockoff, Jonah and 
Turner, Lesley J. (2010). ``Short-Run Impacts of Accountability on 
School Quality.'' American Economic Journal: Economic Policy, 2(4): 
119-47; Winters, M.A., and Cowen, J.M. (2012). Grading New York 
accountability and student proficiency in America's largest school 
district. Educational Evaluation and Policy Analysis, 34(3), 313-
327; Rouse, C.E., Hannaway, J., Goldhaber D., and Figlio D. (2013). 
``Feeling the Florida Heat? How Low-Performing Schools Respond to 
Voucher and Accountability Pressure.'' American Economic Journal: 
Economic Policy, 5(2): 251-81; Figlio, David N. and Rouse, Cecilia 
Elena. (2006). ``Do accountability and voucher threats improve low-
performing schools?'' Journal of Public Economics, 90(1-2):239-255; 
and Chiang, Hanley. (2009). ``How accountability pressure on failing 
schools affects student achievement.'' Journal of Public Economics, 
93(9-10):1045-1057.
---------------------------------------------------------------------------

    We agree with commenters that ensuring transparent, clear 
information on school quality for parents, educators, and the public is 
an essential purpose of accountability for schools under the ESEA, an 
opinion shared by those commenting in support of and opposition to the 
proposed requirement for summative ratings. Further, we agree that the 
increased number of required accountability indicators under the ESEA, 
as amended by the ESSA, provides a valuable opportunity for States to 
provide a more nuanced picture of school performance that includes both 
academic and non-academic factors. This is why our regulations would 
require both a summative determination and information on each 
indicator, which must be reported separately as described in the 
statute and in Sec. Sec.  200.30 through 200.33 and which could be 
presented as part of a data ``dashboard.'' In this way, parents, 
educators, and the public have a wealth of school-level information, 
including information disaggregated by subgroups, at their disposal--
information that will be critical in supporting effective school 
improvement. Given that many commenters did not recognize that a data 
``dashboard'' or other mechanism for indicator-level reporting and a 
summative determination were both a part of State systems of annual 
meaningful differentiation under Sec.  200.18, we are revising the name 
of the section in the final regulations to provide greater clarity and 
reflect all of the components that are included. Section 200.18, 
``Annual Meaningful Differentiation of School Performance: Performance 
Levels, Data Dashboards, Summative Determinations, and Indicator 
Weighting'' reflects our strong belief that requiring States to report 
information on each school's performance on the indicators separately 
and report a comprehensive determination for each school is both 
effective and reasonably necessary, consistent with the requirement for 
robust statewide accountability systems in the ESEA, as amended by the 
ESSA, to provide useful, comparable, and clear information to parents, 
teachers, and other stakeholders about how schools are performing. In 
addition, we are revising Sec.  200.18(a)(4) to emphasize the 
importance of transparent information by clarifying that the purpose of 
the summative determination is to provide information on a school's 
overall performance to parents and the public ``in a clear and 
understandable manner.''
    Changes: We have renamed Sec.  200.18 in the final regulations to 
clarify and recognize all of the components of annual meaningful 
differentiation--performance levels, data dashboards, summative 
determinations, and indicator weighting. We have also clarified Sec.  
200.18(a)(4) to require that the summative determination provide 
information ``in a clear and understandable manner'' on a school's 
overall performance on annual report cards.
    Comments: Several commenters wrote in opposition to the requirement 
for a single summative rating, believing such a requirement unfairly 
penalizes schools based on the makeup of students in their communities, 
due to the correlation between student demographics and student 
achievement measures, with a few commenters specifically concerned such 
a rating would fail to address the unique needs and circumstances of 
rural schools.
    Discussion: We disagree that a requirement for a single summative 
determination, as revised in the final regulation, will unfairly 
differentiate schools based on the students they serve. We believe such 
criticisms may be rooted more in concerns with the accountability 
system required in the past under NCLB, which primarily considered 
student test scores and graduation rates, and that these concerns are 
significantly mitigated by changes in the accountability systems that 
will be implemented under the new law. Under Sec.  200.18, States, in 
consultation with stakeholders, must develop a multi-indicator system 
for annually differentiating schools that looks beyond achievement 
measures to take into account a more well-rounded picture of school 
success. As a result, schools could be recognized for the significant 
progress they are making in helping low-achieving students grow 
academically to meet State standards, improvements in school climate or 
the percentage of English learners who progress toward language 
proficiency, and reductions in rates of chronic absence, among many 
other measures that could be added within one of the new accountability 
indicators. Because of the new discretion States have to rethink the 
measures they use to differentiate schools and create systems that 
represent their local goals and contexts, including the particular 
needs of rural communities, we are hopeful that States can avoid some 
of the pitfalls of their prior accountability systems and provide 
annual school determinations that are clearer and more meaningful to 
the parents and the public.
    Changes: None.
    Comments: One commenter believed that a summative rating 
requirement would inhibit capacity at the local level

[[Page 86123]]

to conduct the data analysis needed to design effective school 
improvement strategies that will meet a school's specific needs, and 
suggested that we add to the regulations an option for States to submit 
in their State plans an alternative method (instead of a summative 
rating) for differentiating schools based on their performance, which 
would require approval from the Secretary based on a number of 
criteria.
    Discussion: Given the revisions described previously to Sec.  
200.18(a)(4), we believe it is unnecessary to provide an alternative 
method for States to differentiate schools--a State may use the 
required categories for identification enumerated in the statute as its 
summative determinations, or adopt a host of other approaches to 
provide an overall picture of each school's performance across all of 
the indicators. Because this overall determination must also be 
presented on report cards alongside indicator-specific information 
(e.g., in a data ``dashboard''), we disagree with the commenter that a 
summative determination makes it more challenging for LEA and school 
staff to access and analyze the data necessary to drive effective 
school interventions. We strongly encourage schools to consider all 
data from its State accountability system, in addition to local data, 
in designing school improvement plans, so that the plans reflect, to 
the fullest extent, the needs and strengths of each identified school. 
Further, we are regulating on the required needs assessment for schools 
identified for comprehensive support and improvement under Sec.  200.21 
to ensure that the school improvement process is data-driven and 
informed by each school's context, relevant student demographic and 
performance data, and the reasons the school was identified, not just 
an overall determination.
    Changes: None.
    Comments: Several commenters were concerned that aggregating 
performance, including performance of student subgroups, across each 
indicator into a single rating would make information about how well a 
school was serving its subgroups of students more opaque and less 
consequential in the overall accountability system.
    Discussion: We agree with commenters that a requirement for a 
summative determination for each school could appear to deemphasize 
related statutory requirements to hold schools accountable for the 
performance of an individual subgroup. This concern is mitigated by the 
fact that summative determinations must reflect the performance of all 
students and subgroups in the school. Nevertheless, we are revising 
Sec.  200.18(a)(6), as renumbered, to reinforce the importance of 
subgroup accountability, while retaining an overall summative 
determination. Further, we note that information on LEA and State 
report cards--including the overview section as described in Sec. Sec.  
200.30-200.31--must show student-level data related to each indicator, 
disaggregated by subgroup, which will help ensure that parents and the 
public have access to both an overall understanding of school 
performance, as well as detailed information broken down by subgroup.
    Changes: We have renumbered and revised Sec.  200.18(a)(6) to 
reiterate that the system of annual meaningful differentiation must 
inform the State's methodology for identifying schools for 
comprehensive and targeted support and improvement, including 
differentiation of schools with a consistently underperforming 
subgroup.
    Comments: Two commenters suggested modifying the requirement in 
proposed Sec.  200.18(b)(4) for each State to provide schools with a 
single rating, from among at least three rating categories, to require 
at least five rating categories. With only three categories, they 
attested, the lowest category would be reserved for schools in the 
lowest-performing five percent of title I schools, while the highest 
category would be limited to a handful of top performers--leaving the 
majority of schools in the middle tier and providing little 
differentiation.
    Discussion: While we appreciate the commenters' concern that three 
summative categories could result in a system where many schools are 
grouped into a single category, we also recognize that the requirement 
for at least three summative categories of schools is most consistent 
with the statutory requirement to, based on all indicators, identify 
schools for comprehensive support and improvement, targeted support and 
improvement, or to not identify schools for either category. Further, 
we believe that a system with five categories of schools could also 
result in the majority of schools identified in a single category, 
depending on the State's methodology. Ultimately, the external peer 
review of State plans will inform whether a State has established a 
system for meaningfully differentiating between schools in a manner 
consistent with the statutory and regulatory requirements. Moreover, we 
believe a number of methodologies and approaches can meet these 
requirements, and we want to ensure States have the ability to adopt a 
range of methods to provide summative determinations. Nothing in the 
regulations prevents a State from adopting additional categories of 
schools, particularly if they find that three categories are not 
providing sufficient differentiation, but we believe States should 
retain that discretion to go beyond the three required categories, 
working with stakeholders and other partners to meets their particular 
needs and goals.
    Changes: None.
    Comments: A few commenters suggested removing the requirement in 
proposed Sec.  200.18(b)(4) for each LEA report card to describe a 
school's summative performance as part of the description of the 
State's system for annual meaningful differentiation on LEA report 
cards under Sec. Sec.  200.31 and 200.32, preferring to give States the 
discretion to report a school's summative rating publicly.
    Discussion: We believe the overall performance of a school is among 
the most critical and essential information to make readily available 
to parents and the public on LEA report cards, alongside data on 
individual measures and indicators. In particular, given the role of 
summative determinations in identification for support and improvement 
under Sec.  200.19, parents and the public need to know a school's 
determination in order to better understand why a school was, or was 
not, identified for intervention.
    Changes: None.
Performance Levels on Indicators
    Comments: Several commenters supported the requirement in Sec.  
200.18 for States to establish and report a performance level (from 
among at least three levels) for each school, for each indicator, as 
part of the State's system of annual meaningful differentiation of 
schools, because such levels would provide necessary and complementary 
information to a school's summative rating by recognizing areas of 
strengths and weakness, in addition to overall performance, and would 
support a more accurate and comprehensive picture of a school's impact 
on learning in the context of multi-measure accountability systems. As 
a result, they believe the requirement helps improves trust in, and the 
transparency of, school determinations among parents and the public and 
informs more effective improvement strategies targeted to the specific 
needs of schools and their students.
    A number of other commenters, however, objected to the proposed 
requirements for States to report the level of performance, from among 
at least three levels, for each indicator on LEA report cards and use 
the

[[Page 86124]]

performance levels as the basis for a school's summative rating. Some 
of these commenters opposed performance levels as a return to 
prescriptive and limiting subgroup-based accountability formulas 
required by the NCLB. Other commenters raised methodological objections 
to performance levels on indicators, asserting that such an approach is 
inconsistent with research and does not yield valid or reliable 
accountability determinations, particularly by setting arbitrary cut 
points, where there is no meaningful difference between schools just 
above, and just below, those cut points.
    Several commenters called for giving States more flexibility to 
design their own systems for differentiating performance on indicators. 
Some of these commenters believe this would result in a less 
complicated and more user-friendly accountability system, while one 
commenter noted that the same policy goals behind performance levels 
could be reached in other ways, such as comparing performance on each 
indicator to State averages or similar schools. Other commenters 
asserted that the requirement for performance levels is inconsistent 
with the ESEA, as amended by the ESSA, or that it violates the 
prohibition in section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by 
the ESSA, regarding the specific methodology used by States to 
meaningfully differentiate or identify schools--noting that the only 
performance levels required under the statute are the academic 
achievement standards under section 1111(b)(1).
    Discussion: We appreciate the support from many commenters for the 
requirement for States to establish performance levels on each 
indicator as part of the system of annual meaningful differentiation. 
We agree that an overall determination for a school is most useful and 
effective when coupled with clear information, such as would be 
provided by State-determined performance levels, on the underlying 
data, which helps contribute to a better understanding of how that data 
led to the school's final determination. We also believe that a clear 
set of performance levels provide the context parents and the public 
need to understand whether a school's performance is adequate, or 
exemplary, context that otherwise may not be evident from comparisons 
to district and State averages on LEA report cards.
    We note, however, that performance levels are not intended to 
create AYP-like thresholds for individual subgroups that definitively 
determine school identification, which some commenters viewed as 
undermining the validity and reliability of schools' accountability 
designations in the past; rather, States must report school results on 
each indicator against the State-determined performance levels as part 
of their overall system of meaningful differentiation of schools on LEA 
report cards. We also note that States have discretion to develop their 
own criteria for performance levels, including norm-referenced 
approaches linked to State averages or performance quartiles--so long 
as the levels are consistent with attainment of the long-term goals and 
measurements of interim progress and clear and understandable, as 
demonstrated in its State plan. In addition, to help clarify the role 
of performance levels in providing schools with a summative 
determination and the distinction between this more flexible approach 
and AYP, we are revising Sec.  200.18(a)(4) to indicate that the 
summative determination is ``based on differing levels of performance 
on the indicators,'' rather than on ``each indicator.''
    In response to commenters who stated that the requirement to 
establish at least three levels of performance on all indicators 
exceeds the Department's authority because it was not explicitly 
included in the statutory text, as previously discussed (see discussion 
of the Department's legal authority under the heading Cross-Cutting 
Issues), given the Department's rulemaking authority under GEPA, the 
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and that 
the requirement falls within the scope of section 1111(c) of the ESEA, 
as amended by the ESSA, consistent with section 1111(e), it is not 
necessary for the statute to specifically authorize the Secretary to 
issue a particular regulatory provision. Further, the requirements in 
Sec.  200.18(a)(2)-(3), as renumbered, for States to adopt and report 
on a school's performance, from among at least three levels of 
performance, on each indicator are necessary to reasonably ensure that 
parents and the public receive comprehensive, understandable 
information on school performance on LEA report cards--information that 
can empower parents, lead to continuous improvement of schools, and 
guide decision-making at the local and State levels.
    By increasing transparency, performance levels help reinforce the 
statutory purpose of title I: ``to provide all children significant 
opportunity to receive a fair, equitable, and high-quality education, 
and to close educational achievement gaps.'' Without such a 
requirement, publicly reported information on the accountability system 
would lack the comparative information needed to determine whether all 
children were receiving an equitable education and closing such gaps on 
a host of measures. This is because data presented on LEA report cards 
``must include a clear and concise description of the State's 
accountability system'' consistent with section 1111(h)(1)(C)(i) and 
1111(h)(2)(c) of the ESEA, as amended by the ESSA, yet is not (with the 
exception of academic assessments under section 1111(b)(2)) presented 
in any context, such as by reporting on the distribution of data at the 
State or LEA level compared to a school's results. Thus, any contextual 
information for parents and the public from the accountability system 
regarding whether schools and LEAs are living up to this purpose would 
be missing, absent a performance level requirement.
    Additionally, these requirements are not inconsistent with section 
1111(e)(1)(B)(iii)(V) because they do not prescribe a particular 
methodology that a State must use to annually differentiate or identify 
schools. States will have discretion to determine how best to meet the 
requirement within the overall design of their system. For example, 
each State will need to decide what the performance levels should be 
for each indicator; whether the same performance levels should be used 
for each indicator; how many levels are appropriate; how the levels 
will be incorporated into the overall system, such as whether they will 
be part of the basis for identifying consistently underperforming 
subgroups; and the particular methodology it will use to determine a 
level for each school.
    Changes: We have revised Sec.  200.18(a)(4) to require that a 
school's summative determination be based on ``differing levels of 
performance on the indicators'' rather than on the school's performance 
level on ``each indicator.''
    Comments: One commenter suggested that requiring indicator 
performance levels to inform the summative rating could mask the 
performance of low-performing subgroups in the context of an overall 
rating, as the performance levels would not necessarily be 
disaggregated for each subgroup in the school. The commenter believed 
the proposed requirements were insufficient to ensure States comply 
with the statutory requirement under section 1111(c)(4)(C)(iii) for 
annual meaningful differentiation to include differentiation of 
consistently underperforming subgroups. Instead, the commenter 
suggested requiring a school with a consistently underperforming 
subgroup to receive a lower summative rating

[[Page 86125]]

than it would have otherwise received if one of its subgroups of 
students was not consistently underperforming.
    Discussion: We agree that the proposed regulations were not clear 
on the relationship between performance levels and subgroup 
accountability. Our intent was not to require a system of performance 
levels for each subgroup on each indicator, but to ensure that 
performance levels reflect a State's long-term goals for all students 
and each subgroup of students. For example, if a State sets a goal of 
achieving a 90 percent four-year graduation rate for all students and 
each subgroup of students, a school with only 70 percent of English 
learners and Black students graduating in four years should not receive 
the highest performance level for that indicator. We recognize, 
however, that not all indicators have a corresponding long-term goal; 
this provision was only intended to apply to indicators for which there 
is a related long-term goal (i.e., academic achievement, graduation 
rates, and ELP), and we are revising the final regulations for clarity 
so that this requirement only includes indicators where an applicable 
long-term goal exists. Further, we are also revising Sec.  
200.18(a)(6), as renumbered, to reinforce the overall importance of 
subgroup accountability by stating that the system for differentiation 
of schools must inform identification of consistently underperforming 
subgroups.
    Finally, we also agree with the commenter that to ensure 
differentiation for consistently underperforming subgroups, as required 
by section 1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, it 
is helpful to require any school with a consistently underperforming 
subgroup of students to receive a lower summative determination than it 
would have otherwise received, and we are revising Sec.  200.18(c)(3) 
accordingly.
    Changes: We have renumbered and revised Sec.  200.18(a)(2)-(3) to 
further clarify the relationship between subgroup performance and the 
performance levels on each indicator. Section 200.18(a)(2) clarifies 
that the three performance levels on each indicator must be consistent 
with attainment of the long-term goals and measurements of interim 
progress, if applicable, because the State is only required to 
establish goals and measurements of interim progress for some 
indicators (i.e., Academic Achievement, Graduation Rate, and Progress 
in Achieving English Language Proficiency). In addition, we have 
renumbered and revised Sec.  200.18(a)(6) to reiterate that the system 
of meaningful differentiation must inform the State's methodology for 
identifying schools for comprehensive and targeted support and 
improvement, including differentiation of schools with a consistently 
underperforming subgroup of students.
    Finally, we have renumbered and revised Sec.  200.18(c)(3) to 
require that each State, in order to meet the requirements for annual 
meaningful differentiation under Sec.  200.18(a), demonstrate that any 
school with a consistently underperforming subgroup of students 
receives a lower summative determination than it otherwise would have 
received had no subgroups in the school been so identified.
    Comments: One commenter recommended revising the requirement for 
each State to establish at least three levels of school performance on 
each indicator under proposed Sec.  200.18(b)(2) so that binary 
measures would be permitted, which could distinguish between schools 
that met or did not meet a certain threshold, providing additional 
flexibility for States. Another commenter suggested clarifying that 
continuous measures would be permissible to meet the requirement for 
setting performance levels on each indicator. For example, the 
commenter suggested that an indicator measured on a 0-100 scale could 
meet the requirement, without further aggregation, because it arguably 
results in 101 performance levels. This comment was consistent with 
others that supported the adoption of data ``dashboards'' as the 
primary basis for school accountability determinations, or the 
increased use of scale scores or raw performance data for 
accountability purposes.
    Discussion: While it is important to understand whether a school is 
meeting a particular performance expectation, such information may be 
incorporated into a system that includes three levels of performance, 
while a binary measure would not support differentiation among above-
average, typical, and below-average performance. Given the statutory 
requirement for meaningful differentiation between schools, we believe 
requiring at least three performance levels on each indicator is 
necessary to meet this requirement. We also believe the requirement for 
three levels is not limiting on States, as nearly any binary measure 
can be expressed in three or more levels (e.g., ``approaching,'' 
``meets,'' and ``exceeding'').
    Similarly, the intent of the provision was to encourage State-
determined performance levels that provide meaningful information on 
each indicator. Merely reporting that a school received 55 out of a 
possible score of 100 on an indicator, for example, does not include 
any context about whether a 55 is a typical score, or whether this is 
an area where the school is lagging or exceeding expectations. Thus, a 
continuous measure does not meet the requirement to establish at least 
three levels of performance for each indicator, as it would otherwise 
be no different than reporting raw data for each indicator; the 
performance levels must be ``discrete.'' We recognize that a data 
``dashboard'' holds potential to be a useful tool for communicating 
information on school quality and may be used by a State to meet this 
requirement, as reflected in revised Sec.  200.18(a)(3), so long as the 
data on the ``dashboard'' is presented in context by creating bands of 
performance or performance thresholds, so that parents and the public 
have clear information on whether a school's level of performance is 
acceptable. The requirement for performance levels on each indicator 
does not prohibit the use of a data ``dashboard'' that shows the full 
scale of values for an indicator; rather, it requires States to make 
distinctions between schools based on the data presented in the 
``dashboard,'' such as by performance bands or quartiles.
    Changes: We have renumbered and revised Sec.  200.18(a)(2)-(3) to 
clarify that a State must, as part of its system of annual meaningful 
differentiation, include at least three distinct and discrete 
performance levels on each indicator, as opposed to continuous measures 
or scale scores, and may use a data ``dashboard'' on its LEA report 
cards for this purpose.
    Comments: One commenter requested the Department require, for the 
Academic Achievement indicator, that a State's academic achievement 
standards under section 1111(b)(1) of the ESEA, include below 
proficient, proficient, and above proficient levels of performance.
    Discussion: We appreciate the commenter's suggestions on ways to 
ensure that academic achievement standards are rigorous and set high 
expectations for all students. Although framed as a comment about 
performance levels, the commenter is actually requesting that the 
Department regulate on academic achievement standards, which require 
negotiated rulemaking. Consequently, the Department is not authorized 
to make the requested change through these final regulations.
    Changes: None.

[[Page 86126]]

Weighting of Indicators
    Comments: Numerous commenters were concerned that the proposed 
regulations overemphasized the role of student achievement, as measured 
by assessments in math and reading/language arts, in the system of 
annual meaningful differentiation of schools. Some of these commenters 
opposed the general requirements in proposed Sec.  200.18(c)(1)-(2) to 
afford indicators of Academic Achievement, Academic Progress, 
Graduation Rates, and Progress in Achieving English Language 
Proficiency ``substantial'' weight, individually, and ``much greater'' 
weight, in the aggregate, than indicators of School Quality or Student 
Success. A number of commenters, however, strongly supported proposed 
Sec.  200.18(c)(1)-(2), recognizing that the language regarding 
``substantial'' and ``much greater'' weight was taken from section 
1111(c)(4)(C) of the ESEA, as amended by the ESSA.
    Discussion: We appreciate that consideration of a greater number of 
factors in measuring school quality can help shed light on important 
aspects of school performance. However, we agree with other commenters 
that the provisions in proposed Sec.  200.18(c)(1)-(2) are based on the 
statutory requirements related to the weighting of indicators, which 
ensure that students' academic outcomes and progress remain a central 
component of accountability.
    Changes: None.
    Comments: A number of commenters supported the provisions in 
proposed Sec.  200.18(d) for how States demonstrate they meet the 
requirements for weighting of indicators and recommended maintaining 
them in the final regulation. These commenters variously stated that 
the requirements (1) provide helpful clarification on the vague 
statutory terms ``much greater'' and ``substantial'' weight; (2) erect 
necessary guardrails to ensure that student academic outcomes, 
including for low-performing subgroups, drive the differentiation of 
schools and identification for support and improvement within State-
determined, multi-measure accountability systems; and (3) preserve 
State discretion over weighting of indicators in their accountability 
systems by focusing on outcomes, rather than particular weighting 
methodologies or percentages. While many of these commenters 
recognized, and often appreciated, the addition of new School Quality 
or Student Success indicators to add nuance to the accountability 
system, they strongly believed that student academic outcomes should 
have the greatest influence on differentiation and identification of 
schools for support and were concerned that, absent these regulations, 
accountability systems would undercut the importance of student 
learning. In addition, many commenters stated that the requirements 
strike an appropriate balance, noting that States could adopt a myriad 
number of approaches and methodologies for weighting their 
accountability indicators, based on their particular goals and needs.
    Numerous commenters, however, objected to these requirements, 
stating that they would prevent new School Quality or Student Success 
indicators from having a meaningful impact in statewide accountability 
systems, including by affecting the differentiation of school 
performance, identification for support and improvement, or the school 
improvement process. While they recognized that these indicators are 
not afforded ``substantial'' weight under the statute, they believed 
the proposed regulations would result in little or zero weight for 
these measures and an overemphasis on test-based measures. In addition, 
several commenters believed the requirements related to demonstrating 
the weighting of indicators discourage the collection of more nuanced 
accountability measures such as school climate or chronic absenteeism. 
Other commenters variously stated that the requirements for weighting 
would be best determined by stakeholders; result in more a complex and 
less transparent system for parents and the public; inhibit creative 
approaches to differentiating school performance and be overly 
prescriptive; inappropriately limit State flexibility in a manner that 
is inconsistent with the ESEA, as amended by the ESSA; or violate 
section 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the ESSA, 
which provides that nothing in the statute authorizes or permits the 
Secretary to prescribe the weight of any measure or indicator or the 
specific methodology used by States to meaningfully differentiate or 
identify schools.
    Discussion: We agree with commenters that it is vital to provide 
guardrails for State systems of annual meaningful differentiation that 
clarify and support effective implementation of the statutory 
requirements for certain indicators to receive ``substantial'' and 
``much greater'' weight, and that these are ambiguous terms that 
warrant specification in regulation, given the influence of indicator 
weighting on how schools will be annually differentiated and identified 
for support and improvement. Section 1111(c)(4)(C)(ii) of the ESEA, as 
amended by the ESSA, requires academic indicators to have a larger role 
in annually differentiating schools, relative to School Quality or 
Student Success indicators, which in turn influences school 
identification. Moreover, we share the views of commenters who believe 
it is important for student academic outcomes, including for subgroups, 
to be at the heart of the accountability system in order to safeguard 
educational equity and excellence for all students.
    In response to commenters who argued that the requirements for 
these demonstrations exceed the Department's authority because they are 
not explicitly authorized by the statute, as previously discussed (see 
discussion of the Department's general rulemaking authority under the 
heading Cross-Cutting Issues), it is not necessary for the statute to 
specifically authorize the Secretary to issue a particular regulatory 
provision, given the Secretary's rulemaking authority under GEPA, the 
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA. Further, 
the requirements in Sec.  200.18(c), as renumbered, are within the 
scope of, and necessary to reasonably ensure compliance with, the 
requirements for the weighting of indicators set forth in section 
1111(c)(4)(C)(ii) of the ESEA, as amended by the ESSA, and for 
differentiation of schools with consistently underperforming subgroups 
set forth in section 1111(c)(4)(C)(iii), and therefore do not violate 
section 1111(e). If a school could receive the same overall 
determination, regardless of whether one of its subgroups was 
consistently underperforming or not, a State's system could not 
reasonably be deemed to ``include differentiation of any . . . school 
in which any subgroup of students is consistently underperforming, as 
determined by the State, based on all indicators'' as required by 
section 1111(c)(4)(C)(iii). Similarly, if a school can go unidentified 
for support and improvement, despite the fact that this school would 
have been in the bottom five percent of title I schools based on 
substantially weighted indicators and despite not making significant 
progress for all students on substantially weighted indicators, the 
State's system of meaningful differentiation is not providing those 
indicators ``much greater'' and ``substantial'' weight, as required by 
section 1111(c)(4)(C)(ii). In both cases, failing to meet the 
demonstrations in Sec.  200.18(c) means that factors identified by the 
statute as requiring extra emphasis (i.e., substantially weighted 
indicators and

[[Page 86127]]

consistently underperforming subgroups) received insufficient attention 
and did not result in ``meaningful'' differentiation.''
    Additionally, the requirements in Sec.  200.18(c), as renumbered, 
for States to demonstrate how they have weighted their indicators and 
ensured differentiation of consistently underperforming subgroups by 
examining the results of the system of annual differentiation and the 
schools that are identified for support and improvement are consistent 
with section 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the 
ESSA, because they do not prescribe the weight of any indicator, nor a 
particular methodology that a State must use to annually differentiate 
schools, such as an A-F grading system. There are numerous weighting 
schemes and processes for differentiating and identifying schools that 
could meet these requirements--including percentages for each 
indicator, business rules or other mechanisms to ensure certain schools 
are identified or flagged for having a consistently underperforming 
subgroup or low performance on ``substantial'' indicators, or a matrix 
approach where a particular combination of performance across various 
indicators results in identification.
    We agree with many commenters that an approach that focuses on 
outcomes (i.e., the overall determination for the school and the 
schools that are identified for support and improvement), is both 
appropriate and necessary to ensure compliance with the requirements in 
section 1111(c)(4)(C)(ii)-(iii) of the ESEA that emphasize certain 
academic indicators and the importance of differentiating schools with 
underperforming groups of students, while maintaining State discretion 
to develop its system of meaningful differentiation. Because these 
demonstrations can apply to any methodology a State designs, they 
provide the Department a way to verify a State has met critical 
statutory requirements for indicator weighting and differentiation of 
subgroups, without stifling the new flexibility States have to adopt 
innovative approaches to differentiate and identify schools for 
support, including those that use categorical labels instead of a 
numerical index.
    We recognize and agree that the intention of the ESSA was to create 
State accountability systems based on multiple measures; however, we 
disagree with commenters that Sec.  200.18(c) will result in a less 
transparent, overly complicated, and test-driven accountability system. 
Under both the NCLB and ESEA flexibility waivers, States often adopted 
business rules or other mechanisms to ensure school identification 
based on their accountability systems was aligned with definitions for 
categories of identified schools, and we are confident that similar 
approaches can be used to ensure compliance with the definitions and 
requirements in the ESSA. Further, section 1111(h)(1) of the ESEA and 
Sec. Sec.  200.30-200.33 require annual State and LEA report cards to 
include a full description of the accountability system, including the 
weighting of indicators, to ensure parents have a clear understanding 
of how differentiation and identification work in their State. Under 
these regulations, States ultimately have the responsibility to design 
accountability systems that meet the statutory requirements for 
weighting of indicators and as a result, may develop systems for 
weighting that are either straightforward or more complex. We strongly 
encourage States to consider the value of clarity and transparency in 
developing their systems, and to develop them in close consultation 
with stakeholders who will be regularly using the information produced 
by the accountability system, including parents, educators, and 
district-level officials, among others.
    Finally, we note that School Quality or Student Success indicators 
must, and should, play a role in providing schools with annual 
determinations and identifying them for improvement and clarify that 
the requirements in Sec.  200.18(c) do not prohibit School Quality or 
Student Success indicators from being taken into account for these 
purposes. Each school's overall determination under Sec.  200.18(a)(4) 
must reflect all of the indicators the State uses, and we believe there 
are significant opportunities for States to develop new and meaningful 
indicators, as discussed further in response to comments on Sec.  
200.14. Because these demonstrations are simply meant to ensure that--
regardless of a school's summative determination--the substantially 
weighted indicators receive sufficient emphasis in determining whether 
a school needs support and improvement, we believe the final 
regulations do not discourage the adoption of innovative approaches to 
measure school success or the collection of new indicators and that 
many methods (as previously described) can meet them.
    Changes: None.
    Comments: Numerous commenters provided feedback on both ways that a 
State must demonstrate it meets the statutory provisions for weighting 
of indicators described in proposed Sec.  200.18(d)(1)-(2), which 
requires that an indicator of School Quality or Student Success may not 
be used to change the identity of a school that would otherwise be 
identified for interventions, unless such a school was also making 
significant progress on a substantially weighted indicator, for the 
same reasons they supported or opposed proposed Sec.  200.18(d) 
generally, as described previously.
    In addition, several commenters had specific concerns about these 
provisions, feeling that under proposed Sec.  200.18(d)(1)-(2) a School 
Quality or Student Success indicator could only be used to penalize, 
rather than reward, schools in the State's system of annual meaningful 
differentiation. In doing so, they believed the proposed regulations 
eliminated a valid rationale (i.e., performance on School Quality or 
Student Success indicators) for differentiating between schools and 
undermined the reliability and validity of school identification. A few 
of these commenters also raised objections that the proposed 
demonstrations potentially conflict with exit criteria in Sec. Sec.  
200.21 and 200.22 by requiring improvement on test-based measures. One 
commenter suggested that the proposed demonstrations in Sec.  
200.18(d)(1)-(2) were unnecessary, so long as States identified the 
required percentage of the lowest-performing schools for comprehensive 
support and improvement.
    Discussion: We disagree with commenters that these demonstrations 
are unnecessary. While States are required to identify certain schools 
for targeted and comprehensive support and improvement, including at 
least the lowest-performing five percent of title I schools, the 
requirements for weighting indicators are a distinct requirement under 
section 1111(c)(4)(C)(ii) of the ESEA, as amended by the ESSA, that 
must be taken into account when identifying schools, in addition to any 
statutory requirements regarding the categories or definitions of 
identified schools.
    We also disagree that the proposed regulations failed to account 
for the positive role that School Quality or Student Success indicators 
can play in a State's accountability system or would lead to invalid 
determinations because these factors were not considered; we believe 
that some of these concerns may be ameliorated by further explanation 
and clarification of how the demonstrations will work. Under the 
proposed and final regulations, each school's level of performance on 
all

[[Page 86128]]

indicators must be reported and factored into the school's summative 
determination under Sec.  200.18(a)(2)-(4), including School Quality or 
Student Success indicators. Schools that do well on indicators of 
School Quality or Student Success should see those results reflected in 
both their performance level for that indicator (which may be part of a 
data ``dashboard''), and in their overall determination (e.g., an 
overall numerical score or grade, a categorical label like ``priority'' 
or ``focus'' schools, etc.). The separate requirements in Sec.  
200.18(c)(1)-(2), as renumbered, are intended to help States 
demonstrate that their methods afford ``much greater'' weight to the 
academic indicators, in the aggregate, than to indicators of School 
Quality or Student Success not by focusing solely on school summative 
determinations, but by analyzing school identification for 
comprehensive and targeted support and improvement--this will serve as 
a check to ensure that, on the whole, each substantially weighted 
indicator is receiving appropriate emphasis in the State's 
accountability system and that schools struggling on these measures 
receive the necessary supports.
    These requirements are completely distinct from exit criteria, 
which are described in Sec. Sec.  200.21-200.22 and apply to schools 
that have been implementing comprehensive and targeted support and 
improvement plans. The demonstrations described in Sec.  200.18(c)(1)-
(2) happen earlier in the accountability process to help determine 
which schools should be identified and subsequently placed in support 
and improvement. In particular, a State would meet these demonstrations 
for indicator weighting by flagging any unidentified school that met 
two conditions: (1) The school would have been identified if only 
substantially weighted indicators had been considered; and (2) the 
school did not show significant progress from the prior year, as 
determined by the State, on any substantially weighted indicator. While 
schools are expected, under Sec. Sec.  200.21-200.22, to make progress 
in order to exit improvement status, the progress referenced in 
proposed Sec.  200.18(d)(1)-(2) could avoid entry into improvement 
status altogether. We believe that minor clarifications to proposed 
Sec.  200.18(d)(1)-(2) can help clarify how these requirements are 
intended to be implemented.
    Changes: We have renumbered and revised Sec.  200.18(c)(1)-(2) to 
distinguish these requirements for demonstrating the weight of 
indicators from exit criteria that remove schools from identified 
status, as specified in Sec. Sec.  200.21 and 200.22. We have also 
revised Sec.  200.18(c)(1)-(2) to clarify that these demonstrations are 
intended to verify that schools that would hypothetically be identified 
on the basis of all indicators except School Quality or Student 
Success, but were excluded from identification when the State 
considered all indicators, have been appropriately categorized in a 
status other than comprehensive support and improvement or targeted 
support and improvement, because these schools made significant 
progress on the accountability indicators, including at least one that 
receives ``substantial'' weight.
    Comments: Some commenters asked for additional guidance on what 
significant progress means, or for revisions to clarify that 
significant progress is determined by the State. One commenter further 
suggested that we strike the expectation for significant progress, and 
replace it with a demonstration of sufficient progress.
    Discussion: We agree with commenters that it is helpful to make 
clear that significant progress, in the context of the demonstrations 
for indicator weighting required under renumbered Sec.  200.18(c)(1)-
(2), is defined by the State based on the school's performance from the 
prior year, and are revising the final regulations accordingly. Given 
that States have this discretion to define significant progress in 
context of their unique indicators and goals, we believe additional 
examples or considerations for ``significant progress'' are best 
addressed in non-regulatory guidance.
    Changes: We have revised Sec.  200.18(c)(1)-(2) to clarify that the 
meaning of significant progress from the prior year, as determined by 
the State, on a substantially weighted indicator as part of these 
demonstrations.
    Comments: A few commenters asserted that the proposed regulations 
complicated the statutory requirements for ``substantial'' and ``much 
greater'' weight and recommended alternative approaches, such as 
requiring that School Quality or Student Success account for less than 
50 percent of all indicators in a statewide accountability system, or 
that each indicator be weighted equally at 25 percent (meaning that 
non-School Quality or Student Success indicators would make up 75 
percent of the overall rating). Finally, some commenters recommended 
additional guidance on the weighting of indicators, including specific 
percentages that might be afforded to certain indicators consistent 
with statutory and regulatory requirements, as well as how to 
demonstrate compliance with Sec. Sec.  200.18(d)(1) and (2).
    Discussion: We agree with commenters that further examples and 
discussion to clarify the requirements for weighting of indicators in 
Sec.  200.18(c) would be helpful and should be addressed in any non-
regulatory guidance the Department issues to support States in 
implementation of their accountability systems.
    Because States retain the discretion to develop numerous methods 
for annual meaningful differentiation, including those that build on 
data ``dashboards'', use a two-dimensional matrix, or rely on 
categorical labels rather than a numerical index, we believe it would 
be inappropriate to regulate that a particular percentage for each 
indicator, or set of indicators, would meet the statutory requirements 
to afford academic indicators ``substantial'' and ``much greater'' 
weight, as it could imply that only numerical indices were permitted. 
Although we are not including any percentages in the final regulations, 
we also note that we disagree with commenters suggesting that ``much 
greater'' weight for academic indicators could be as little as half of 
the overall weight in the system of differentiation--``much greater'' 
implies that these indicators should be afforded well over 50 percent 
of the weight.
    Changes: None.
    Comments: One commenter stated that the required demonstrations for 
States related to weighting of indicators could create confusion for 
rural or small schools where data on the ``substantial'' (in 
particular, those based on student assessment results) indicators may 
not be available due to n-size limitations.
    Discussion: We recognize the commenter's concern that there are 
cases where a school may be missing a particular indicator for a number 
of reasons, which would complicate meeting the requirements in Sec.  
200.18(c). As discussed in greater detail below under the subheading 
Other Requirements in Annual Meaningful Differentiation of Schools, we 
are revising Sec.  200.18(d)(1)(iii) to include a provision previously 
in proposed regulations for consolidated State plans that permit a 
State to propose a different methodology for very small schools, among 
other special categories of schools, in annual meaningful 
differentiation, which would include how indicators are weighted.
    Changes: None.
    Comments: Numerous commenters provided feedback to the Department 
on proposed Sec.  200.18(d)(3), which would require each State to 
demonstrate that a

[[Page 86129]]

school performing at the State's highest performance level on all 
indicators received a different summative rating than a school 
performing at the lowest performance level on any substantially 
weighted indicator, based on the performance of all students and each 
subgroup of students in a school, citing the same reasons they 
generally supported or opposed the requirements in proposed Sec.  
200.18(d) overall.
    However, a number of commenters raised additional concerns that 
were specific to proposed Sec.  200.18(d)(3). Several commenters felt 
the requirement would undermine the transparency of summative ratings, 
because a single low-performing subgroup could prevent a school from 
receiving the highest possible distinction in the State's 
accountability system. They further noted that the proposed 
demonstrations felt like a return to the top-down and prescriptive 
system of AYP, which the ESSA eliminated in favor of greater 
flexibility for States with respect to the design of accountability 
systems and determinations. In addition, a few commenters suggested 
eliminating this provision, citing their overall objection to summative 
ratings.
    Other commenters suggested replacing this demonstration with a 
requirement that would emphasize differentiation of schools with 
consistently underperforming subgroups of students, believing that 
Sec.  200.18(d)(3), as proposed, created incentives for States to 
establish a very small ``highest'' rating category (e.g., an A+ 
category of schools in an A-F system), so that schools could still 
receive a very high rating when one or two subgroups were struggling on 
a substantially weighted academic indicator. They recommended requiring 
a State to demonstrate that any school with a consistently 
underperforming subgroup of students, as identified under Sec.  200.19, 
would be assigned a lower summative rating than it would have otherwise 
received as a stronger way to ensure States' systems of annual 
meaningful differentiation meet the statutory requirement to 
differentiate schools with consistently underperforming subgroups.
    Discussion: We appreciate many commenters' views on the importance 
of upholding the statutory requirements for the academic indicators to 
receive ``substantial'' weight individually, and ``much greater'' 
weight in the aggregate, in each State's system of annual meaningful 
differentiation, and their recognition that this is particularly 
important to ensure subgroup performance is meaningfully recognized in 
the State's accountability system. Moreover, the statute requires the 
Academic Achievement, Academic Progress, Graduation Rate, and Progress 
in Achieving English Language Proficiency indicators to have a ``much 
greater'' role in school differentiation, compared to School Quality or 
Student Success indicators, and we share the views of commenters who 
believe that student academic outcomes, including outcomes for 
subgroups, must be a primary focus of the accountability system as a 
way to promote equity and excellence for all students.
    We agree with commenters that these ends, however, would be better 
realized by revising the proposed regulations to require that a school 
with a consistently underperforming subgroup of students receive a 
lower summative determination than it would have otherwise received if 
the subgroup were not consistently underperforming, given the 
commenters' argument that the proposed regulations did not adequately 
include the statutory requirement differentiate schools with a 
consistently underperforming subgroup. We believe the suggestion of 
linking this demonstration to consistently underperforming subgroups of 
students better reinforces the requirement in section 
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, for a State's 
system of annual meaningful differentiation to include differentiation 
of schools with a consistently underperforming subgroup; we agree that 
if a school is able to receive the same overall determination, 
regardless of whether a subgroup is underperforming, a State has not 
met this requirement. We also agree with the commenter that this 
approach will provide less of an incentive for States to create a very 
small ``highest'' category (an ``A+'' category), rather than remove 
schools from an exemplary category (an ``A'' grade) due to subgroup 
performance.
    While we recognize commenters' concerns that this demonstration, as 
proposed, would undermine the transparency of school determinations or 
would require States to develop an AYP-like accountability system, we 
believe that such concerns are outweighed by the statutory requirement 
that consistently underperforming subgroups must be meaningfully 
differentiated each year and be identified for targeted support and 
improvement--and believe that an accountability system is not 
communicating school performance clearly to the public if a 
consistently underperforming subgroup is not reflected in a school's 
overall performance designation. Finally, in response to commenters 
that opposed this provision as proposed due to their opposition to 
summative ratings for schools, as the final regulation clarifies that 
the summative determination may be aligned to the categories required 
for school identification (in which case, schools with a consistently 
underperforming subgroup would be in targeted support and improvement), 
we believe the revisions to Sec.  200.18(a)(4) address their concerns.
    Changes: We have renumbered and revised Sec.  200.18(c)(3) to 
require that each State, in order to meet requirements for annual 
meaningful differentiation under Sec.  200.18(a) and section 
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, demonstrate 
that any school with a consistently underperforming subgroup of 
students receives a lower summative determination than it otherwise 
would have received had no subgroups in the school been so identified.
    Comments: A few commenters suggested replacing all three of the 
demonstrations related to indicator weighting with an alternative 
requirement that States demonstrate in their State plans how the 
academic indicators carry ``much greater'' weight than non-academic 
indicators, and how the State's methodology to identify schools will 
ensure that schools with low performance on indicators receiving ``much 
greater'' weight will be identified for improvement as a result.
    Discussion: We appreciate the commenters' recognition that a 
State's system for weighting indicators should align with its 
methodology for identifying schools for comprehensive and targeted 
support and improvement. While we disagree that the demonstrations in 
Sec.  200.18(c), as renumbered, are unnecessary (as previously 
described), we agree that schools performing poorly on substantially 
weighted indicators should be more likely to be identified for 
intervention, and the focus on the outcomes of the system of annual 
meaningful differentiation (rather than inputs) is consistent with our 
approach to the weighting requirements generally. To reiterate this 
focus on outcomes and ensure that, through its State plan, each State 
describes how it is meeting the underlying purpose of the requirements 
in Sec.  200.18(c)(1)-(2) related to weighting, we are revising Sec.  
200.18(d)(1)(ii) to specify that the overall goal behind the 
requirements for weighting indicators is to ensure that schools 
performing poorly across the indicators receiving ``much greater'' 
weight are more likely to be identified for support and improvement 
under

[[Page 86130]]

Sec.  200.19 and to include this explanation in the State plan with the 
State's demonstration of how it is meeting the requirements of Sec.  
200.18(c).
    Changes: We have revised Sec.  200.18(d)(1)(ii) to require that 
each State describe in its State plan how it has met all of the 
requirements of this section, including how the State's methodology for 
identifying schools for comprehensive support and improvement and 
targeted support and improvement ensures that schools with low 
performance on substantially weighted indicators are more likely to be 
so identified.
    Comments: Several commenters supported the clarification in 
proposed Sec.  200.18(e)(2) that the indicators required by the statute 
to receive ``substantial'' weight (Academic Achievement, Graduation 
Rate, Academic Progress, and Progress in Achieving English Language 
Proficiency) need not be afforded the same ``substantial'' weight in 
order to meet the requirement--promoting flexibility and discretion for 
States in designing their accountability systems under the ESSA and 
weighting indicators based on State-determined priorities and goals.
    Discussion: We appreciate the commenters' support for this 
provision.
    Changes: None.
    Comments: A few commenters expressed support for the requirements 
in proposed Sec.  200.18(c)(3) and (e)(3) that States maintain the same 
relative weighting between the accountability indicators for all 
schools within a grade span, including for schools that are not held 
accountable for the Progress in Achieving English Language Proficiency 
indicator, as a way to maintain consistency and fairness in States' 
systems for differentiating schools. Other commenters, however, opposed 
the requirement. Some believed the requirement goes beyond the statute 
because the only requirements related to grade spans in section 1111(c) 
of the ESEA, as amended by the ESSA, are related to indicators of 
School Quality or Student Success. Others thought the requirement was 
an overly prescriptive intrusion on State discretion over the weighting 
of indicators, as States will be in a better position to determine a 
method to maintain comparable and fair expectations for all schools. A 
few other commenters requested that we modify the relative weighting 
requirement so that States may vary the weighting between indicators 
not only by grade span, but also based on the characteristics of 
students served by the school or the amount of data available for a 
given indicator in a school; these commenters believed, for example, 
that school demographics could make one indicator more relevant than 
other indicators, and thus deserving of greater weighting, in measuring 
school performance. Similarly, commenters questioned how this provision 
would work in small schools and in schools that serve variant grade 
configurations. However, another commenter believed that all schools 
should be held accountable for the Progress in Achieving English 
Language Proficiency indicator, regardless of the number of English 
learners in the school, to ensure that States selecting higher n-sizes 
do not avoid accountability for ELP.
    Discussion: We appreciate that commenters want to ensure States 
have the ability to establish multi-indicator accountability systems 
that are fair for all schools and accurately capture a school's overall 
impact on student learning, consistent with the requirements for 
substantially weighing certain indicators, and agree that requiring the 
same relative weighting among all schools within a grade span should be 
maintained.
    We recognize that it is challenging to have a system of annual 
meaningful differentiation with completely uniform weighting, given 
differences in school size, grade configurations, and special 
populations of students served. Therefore, we are revising the 
regulations, as discussed previously, to permit States to propose 
alternative approaches that are used to accommodate special kinds of 
schools. However, very small schools or schools with variant grade 
configurations that do not fit into a single grade span are the 
exception, not the norm; we believe it is paramount to ensure that 
schools are treated consistently in the system of annual meaningful 
differentiation given the consequential decisions (e.g., identification 
for comprehensive or targeted support and improvement, eligibility for 
school improvement funding) that flow out of this system. The statute 
requires a statewide, multi-indicator accountability system, and a non-
uniform weighting scheme between those indicators across a State would 
undermine this requirement significantly. States retain significant 
flexibility to design the statewide weighting scheme between each grade 
span using their various indicators, but without uniform weighting 
within each grade span, the methodology for differentiating schools and 
identifying them for support and improvement could be unreliable from 
district to district, or worse, biased against particular schools or 
set lower expectations for certain schools, based on the population of 
students they serve.
    Thus, it is crucial that all of the accountability indicators be 
afforded the same relative weights across schools within a grade span 
to reasonably ensure compliance with the statutory requirements in 
section 1111(c) regarding a statewide system of annual meaningful 
differentiation and identification of schools for support and 
improvement, including the weighting of indicators in section 
1111(c)(4)(c). As such, this regulation falls squarely within the 
Department's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA and within the scope of section 1111(c) of the 
ESEA, as amended by the ESSA, and therefore does not violate section 
1111(e). For example, allowing the Academic Achievement indicator to 
matter more for subgroups that are already high achieving, and less in 
schools where subgroups are low-performing, would be both inconsistent 
with the purpose of the accountability system to improve student 
achievement and school success, and introduce bias into the system of 
differentiation. In response to commenters who noted this provision was 
not explicitly referenced in the statutory text, given the Secretary's 
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the 
ESEA, as amended by the ESSA (see discussion of the Department's 
general rulemaking authority under the heading Cross-Cutting Issues), 
it is not necessary for the statute to specifically authorize the 
Secretary to issue a particular regulatory provision.
    In general, because the Progress in Achieving English Language 
Proficiency indicator is the sole indicator that is measured for a 
single subgroup, we believe it is helpful to clarify that the relative 
weighting of indicators must be maintained when a school cannot be held 
accountable for this indicator due to serving a low number of English 
learners; as the n-size will be determined by each State, and as some 
schools may not serve any English learners, we cannot require all 
schools to be held accountable on the basis of this indicator. Since 
the statute creates this distinction (by creating one of the five 
required indicators around a single subgroup), we believe it is 
appropriate to include a specific exception to the relative weighting 
requirement based on this indicator, but to limit other exceptions to 
the relative weighting requirement.
    Changes: None.
    Comments: A few commenters suggested that the Department encourage 
each State to emphasize

[[Page 86131]]

student growth or progress, over absolute achievement, when weighting 
its accountability indicators consistent with proposed Sec.  
200.18(c)(1)-(2), because they believe student growth more accurately 
reflects the impact of a school on student learning than a measure of 
achievement taken at a single point in time.
    Discussion: We agree that student academic growth is a critical 
measure to include in State accountability systems, and encourage all 
States to incorporate both achievement and growth into the annual 
differentiation of schools, because a student growth measure can reveal 
and recognize schools with low achievement levels that nevertheless are 
making significant strides to close achievement gaps and thus should be 
celebrated, and may not need to be identified for improvement. However, 
we believe it is most consistent with the statute for each State, and 
not the Department, to determine whether using student growth is 
appropriate for its accountability system, and to select the weight 
afforded to student growth relative to other required indicators.
    Changes: None.
Other Requirements in Annual Meaningful Differentiation of Schools
    Comments: Several commenters suggested that Sec.  200.18 should 
include additional references to stakeholder engagement, including 
consultation with parents, district and school leaders, educators and 
other instructional support staff, and community members, in developing 
the system of annual meaningful differentiation. One commenter 
suggested such engagement be expanded to include the creation of parent 
and community advisory boards to develop and implement the system of 
differentiation used in their State and LEA, while another commenter 
suggested schools be held accountable for how well they involve parents 
in key decisions and improvement efforts.
    Discussion: The requirements for annual meaningful differentiation 
of schools in Sec.  200.18 already are subject to requirements for 
timely and meaningful consultation as part of the consolidated State 
plan regulations, and we believe additional emphasis on stakeholder 
engagement here is unnecessary.
    Changes: None.
    Comments: A number of commenters supported the reiteration of 
statutory requirements in proposed Sec.  200.18(b)(1) for the system of 
annual meaningful differentiation to include the performance of all 
students and each subgroup of students on every required accountability 
indicator, consistent with the requirements for inclusion of subgroups 
in Sec.  200.16, for n-size in Sec.  200.17, and for partial enrollment 
in Sec.  200.20. Other commenters objected to these requirements as 
precluding certain indicators that could provide helpful information to 
differentiate between schools but could not be disaggregated for each 
student subgroup, such as teacher or parent surveys or whole-school 
program evaluations.
    Discussion: Section 1111(c)(4)(B) of the ESEA, as amended by the 
ESSA, is clear that each indicator used in statewide accountability 
systems must be disaggregated by subgroup, with the exception of the 
Progress in Achieving English Language Proficiency indicator, which is 
only measured for English learners. Further, section 1111(c)(4)(C) 
states that meaningful differentiation of schools must be based on all 
indicators for all students and for each subgroup of students.
    Changes: None.
    Comments: A few commenters objected to the requirements in proposed 
Sec.  200.18(b)(5) for the system of annual meaningful differentiation 
to meet requirements in Sec.  200.15 to annually measure the 
achievement of at least 95 percent of all students and 95 percent of 
students in each subgroup on the required assessments in reading/
language arts and mathematics.
    Discussion: Section 1111(c)(4)(E) of the ESEA, as amended by the 
ESSA, requires each State to measure the achievement of at least 95 
percent of students and 95 percent of students in each subgroup and 
factor this participation requirement into the statewide accountability 
system, and this provision only reiterates regulatory requirements 
described further in Sec.  200.15.
    Changes: None.
    Comments: A number of commenters requested additional flexibility 
or exceptions to the requirements for annual meaningful differentiation 
for certain categories of schools, such as rural schools, small 
schools, schools that combine grade spans (e.g., a K-12 schools), and 
alternative schools (e.g., schools serving overage or under-credited 
students, other dropout recovery programs, or students with 
disabilities who may need more time to graduate). These commenters 
generally acknowledged the need to hold such schools accountable for 
their performance, but sought flexibility to use different indicators 
or methods that they believe would be more suited to the unique needs 
and circumstances of these schools. One commenter noted that while 
proposed Sec.  299.17 would permit States to propose different methods 
for differentiating school performance in their consolidated State 
plans, it was not sufficiently clear whether this flexibility extended 
to school identification. Other commenters expressed concerns about 
creating loopholes in the accountability system for schools that serve 
vulnerable and historically underserved student populations.
    Discussion: We appreciate the commenters' concerns with designing 
accountability systems that are inclusive of all schools and provide 
fair, consistent methods for reporting school performance and 
determining when additional interventions and supports are necessary. 
We share these goals, which is why proposed Sec.  299.17 permitted 
States flexibility to develop or adopt alternative methodologies under 
their statewide accountability systems that address the unique needs 
and circumstances of many of the schools cited by commenters.
    This flexibility, which is similar to past practice under NCLB, is 
also intended to apply to both annual meaningful differentiation and 
identification of schools under Sec. Sec.  200.18 and 200.19, and 
allows a State, if it desires, to propose an alternative way for 
producing an annual determination for these schools (based on the same, 
or modified, indicators) and for identifying these schools for 
comprehensive or targeted support and improvement. We are revising 
Sec.  200.18(d)(1)(iii) to include the list of schools for which a 
State may use a different methodology for accountability previously 
included in Sec.  299.17, with additional clarification or examples to 
better explain why such schools might require this flexibility. We 
note, however, that this provision allows for this flexibility only 
where it is impossible or inappropriate to include all of the 
indicators a State typically uses to differentiate schools, and thus is 
not generally applicable to regular public schools, including most 
rural schools.
    Changes: We have revised Sec.  200.18(d)(1)(iii) to include 
clarifying language, previously in proposed Sec.  299.17, that a State 
may propose a different methodology for annual meaningful 
differentiation--and by extension, identification for comprehensive and 
targeted support and improvement--for certain schools, such as: (1) 
Schools in which no grade level is tested on the assessments required 
by the ESEA under section 1111(b)(2)(B) (e.g., P-2 schools); (2) 
schools with variant grade configurations (e.g., K-12 schools); (3)

[[Page 86132]]

small schools that do not meet the State's n-size on any indicator even 
after averaging data across schools years or grades consistent with 
Sec.  200.20; (4) schools that are designed to serve special 
populations, such as students receiving alternative programming in 
alternative educational settings; students living in local institutions 
for neglected or delinquent children, including juvenile justice 
facilities; students enrolled in State public schools for the deaf or 
blind; and recently arrived English learners enrolled in public schools 
for newcomer students; and (5) newly opened schools where multiple 
years of data are not available consistent with procedures for 
averaging school-level data described in Sec.  200.20 for at least one 
indicator (e.g., a high school that has not yet graduated its first 
cohort for students).
    Comments: We received several comments from tribal organizations 
that recommended exempting schools from the requirement for annual 
meaningful differentiation in section 200.18 if they instruct students 
primarily in a Native American language and if the State does not 
provide an assessment in that Native American language; these 
commenters suggested such schools should be listed as 
``undifferentiated.'' However, other tribal organizations supported the 
proposed regulations for a single statewide accountability system, 
particularly because over 90 percent of American Indian and Alaska 
Native students attend State-funded public schools, as opposed to 
schools funded by the BIE or private operators. For these public school 
students, one commenter noted, the statewide accountability systems, 
including indicators that measure student achievement, are especially 
important.
    Another tribal organization raised concerns about a lack of 
accountability for schools served by the Bureau of Indian Education 
(BIE) and requested that separate accountability measures should apply 
to tribally-controlled schools, and that schools located on Indian 
lands should be funded and monitored directly by the Department rather 
than by States.
    Discussion: While States have some flexibility to develop alternate 
methods for differentiating and identifying schools, as described 
previously, the ESEA, as amended by the ESSA, continues to require that 
all public schools in each State be held accountable through a single 
statewide system of annual differentiation, and States may not exempt 
any school entirely from annual meaningful differentiation or 
identification. This includes schools that primarily instruct students 
in a Native American language.
    In addition, under section 8204(c)(1) of the ESEA, as amended by 
the ESSA, the Secretary of the Interior must use a negotiated 
rulemaking process to develop regulations pertaining to standards, 
assessments, and accountability, consistent with section 1111, for BIE-
funded schools ``on a national, regional, or tribal basis, as 
appropriate, taking into account the unique circumstances and needs of 
such schools and the students served by such schools.'' Given the 
specific rulemaking process required for schools funded by the BIE, we 
cannot address in these regulations the role of individual schools 
under the BIE accountability system. We do note, however, that section 
8204(c)(2) permits a tribal governing body or school board of a BIE-
funded school to waive, in part or in whole, the requirements that BIE 
establishes and to submit a proposal to the Secretary of the Interior 
for alternative standards, assessments, and an accountability system, 
consistent with section 1111, that takes into account the unique 
circumstances and needs of the school or schools and students served. 
The Secretary of the Interior, along with the Secretary of Education, 
must approve those alternative standards, assessments, and 
accountability system unless the Secretary of Education determines that 
they do not meet the requirements of section 1111.
    With respect to the comment about the funding and monitoring of 
schools located on Indian lands, to the extent that the comment is 
referring to State-funded public schools, State funding and oversight 
are matters of State law and are outside the scope of these 
regulations.
    Changes: None.
    Comments: None.
    Discussion: Each State must describe in its State plan how its 
system of annual meaningful differentiation meets all statutory and 
regulatory requirements, but in proposed Sec.  200.18, multiple 
paragraphs referenced information that must be included in the State 
plan. To provide additional clarity for States, prevent the inadvertent 
omission of required information in a State plan, and ensure that 
required information is transparent for those preparing and reviewing 
State plan submissions, we are revising Sec.  200.18 to combine all 
requirements related to information submitted on annual meaningful 
differentiation in the State plan in a single paragraph.
    Changes: We have revised Sec.  200.18(d)(1), and renumbered 
remaining paragraphs of Sec.  200.18 accordingly, to include, in one 
paragraph, all information that each State must submit in its State 
Plan under section 1111 of the ESEA to describe how its system of 
annual meaningful differentiation meets the regulations.
    Comments: While many commenters supported the provisions in Sec.  
200.18 regarding annual meaningful differentiation of schools, a few 
commenters recommended striking Sec.  200.18 in its entirety, out of 
concern that the regulations are too prescriptive, punitive, test-
driven, and unnecessary to clarify the statute.
    Discussion: As discussed previously, the regulations are necessary 
and useful to clarify the requirements for annual meaningful 
differentiation and weighting of indicators. Further, we believe these 
regulations will help States in their efforts to support students and 
schools, consistent with the purpose of title I: ``to provide all 
children significant opportunity to receive a fair, equitable, and 
high-quality education, and to close educational achievement gaps.''
    Changes: None.

Section 200.19 Identification of Schools

    Comments: One commenter stated that the proposed regulations lack 
clarity regarding the terms used for the various groups of schools that 
States must identify for school improvement. As an example, the 
commenter noted that schools identified for additional targeted support 
are referenced as having either a chronically low-performing subgroup 
or a low-performing subgroup.
    Discussion: The Department has made every effort to use consistent 
language throughout the regulations when referring to categories of 
identified schools. The examples cited by the commenter actually refer 
to two separate categories of schools. Schools with low-performing 
subgroups are schools identified for targeted support and improvement 
that also must receive additional targeted support under section 
1111(d)(2)(C) of the ESEA, as amended by the ESSA; if they do not 
improve over time, then they are defined as chronically low-performing 
subgroup schools and must be identified for comprehensive support and 
improvement. For greater clarity regarding the types of schools that 
must be identified, the Department is revising the final regulations to 
include the chart below, which summarizes each category of schools that 
States must identify to meet the requirements in section

[[Page 86133]]

1111(c) and 1111(d) of the ESEA, as amended by the ESSA:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Statutory                                  Timeline for         Initial year of
       Types of schools                Description \22\          provision \23\     Regulatory  provision     identification         identification
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Category: Comprehensive Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lowest-Performing............  Lowest-performing five percent   Section           Sec.   200.19(a)(1)......  At least once     2018-2019.
                                of schools in the State          1111(c)(4)(D)(i                              every three
                                participating in Title I.        )(I).                                        years.
Low High School Graduation     Any public high school in the    Section           Sec.   200.19(a)(2)......  At least once     2018-2019.
 Rate.                          State with a four-year           1111(c)(4)(D)(i                              every three
                                adjusted cohort graduation       )(II).                                       years.
                                rate at or below 67 percent,
                                or below a higher percentage
                                selected by the State, over no
                                more than three years.
Chronically Low-Performing     Any school participating in      Section           Sec.   200.19(a)(3)......  At least once     State-determined.
 Subgroup.                      Title I that (a) was             1111(c)(4)(D)(i                              every three
                                identified for targeted          )(III),                                      years.
                                support and improvement          1111(d)(3)(A)(i
                                because it had a subgroup of     )(II).
                                students performing at or
                                below the performance of all
                                students in the lowest-
                                performing schools and (b) did
                                not improve after implementing
                                a targeted support and
                                improvement plan over a State-
                                determined number of years.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Category: Targeted Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Consistently Underperforming   Any school with one or more      Section           Sec.   200.19(b)(1), (c).  Annually........  2019-2020.
 Subgroup.                      consistently underperforming     1111(c)(4)(C)(i
                                subgroups.                       ii),
                                                                 1111(d)(2)(A)(i
                                                                 ).
Low-Performing Subgroup......  Any school in which one or more  Section           Sec.   200.19(b)(2)......  At least once     2018-2019.
                                subgroups of students is         1111(d)(2)(D).                               every three
                                performing at or below the                                                    years.
                                performance of all students in
                                the lowest-performing schools.
                                These schools must receive
                                additional targeted support
                                under the law. If this type of
                                school is a Title I school
                                that does not improve after
                                implementing a targeted
                                support and improvement plan
                                over a State-determined number
                                of years, it becomes a school
                                that has a chronically low-
                                performing subgroup and is
                                identified for comprehensive
                                support and improvement.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Changes: We have revised Sec.  200.19 to include a table that 
describes each category of school support and improvement, including 
each type of school within the category, and lists the related 
statutory and regulatory provisions.
---------------------------------------------------------------------------

    \22\ This chart provides a summary description only; please 
refer to the regulatory text for a complete description of the 
schools in these categories.
    \23\ Section numbers refer to sections of the ESEA, as amended 
by the ESSA.
---------------------------------------------------------------------------

    Comments: Several commenters expressed concerns that the proposed 
regulations would not allow States to identify schools for support if 
they are eligible for, but do not receive, title I funds. Commenters 
believe this is inconsistent with current practice and would result in 
the identification of fewer high schools because most school districts 
run out of title I funds before awarding funds to high schools. A few 
commenters suggested that the Department allow States to identify the 
lowest-performing five percent of title I-eligible schools, rather than 
the lowest-performing five percent of title I-receiving schools. One 
commenter raised concerns that if a State did not identify any high 
schools for support and improvement because they did not receive title 
I funds, then high schools would not be eligible for funds under 
section 1003.
    Discussion: We appreciate commenters' interest in ensuring that all 
low-performing high schools are identified and supported. However, 
under section 1111(c)(4)(D)(i)(I) of the ESEA, as amended by the ESSA, 
a State is limited to identifying only schools that receive title I 
funds when it identifies its lowest-performing five percent of title I 
schools for comprehensive support and improvement. On the other hand, 
States must identify any public high school with a graduation rate 
below 67 percent for comprehensive support and improvement and any 
school with subgroups that are consistently underperforming for 
targeted support and improvement, regardless of their title I status. 
Any school identified for comprehensive or targeted support and 
improvement that meets the definitions of those categories of schools 
under the statute is eligible for funds under section 1003 of the ESEA, 
as amended by the ESSA, regardless of whether the school receives other 
title I funds. Given these statutory requirements for States to 
identify and support high schools that do not receive title I funds, we 
do not believe that additional regulatory flexibility is appropriate or 
necessary.
    Changes: None.
    Comments: One commenter suggested the Department provide non-
regulatory guidance on how title I funds can be used to support non-
title I high schools identified for comprehensive support

[[Page 86134]]

because they have a graduation rate less than 67 percent.
    Discussion: We appreciate the commenters' suggestion and will 
consider this recommendation for non-regulatory guidance. As described 
in the previous discussion section, a school non-title I high school 
identified for comprehensive support because it has a graduation rate 
of 67 percent or less is eligible for funds under section 1003 of the 
ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter asked for clarity about whether a single 
school can be identified for comprehensive and targeted support and 
improvement simultaneously.
    Discussion: It is possible that a school could meet the criteria to 
be identified for both comprehensive and targeted support and 
improvement. Given that the requirements for developing and 
implementing comprehensive and targeted support and improvement plans 
do not fully align, we are revising the regulations to clarify that 
States must identify any school that is not identified for 
comprehensive support and improvement under Sec.  200.19(a), but that 
has a consistently underperforming subgroup or low-performing subgroup, 
for targeted support and improvement. We encourage States and LEAs to 
ensure that, for each school that is identified for comprehensive 
support and improvement but who has a consistently underperforming or 
low-performing subgroup, to ensure that the school's comprehensive 
improvement and support plan identifies the needs of all students and 
includes interventions designed to raise the achievement of all low-
performing students.
    Changes: We have revised Sec.  200.19(b)(1)-(2) to clarify that any 
school identified for comprehensive support and improvement under Sec.  
200.19(a) need not also be identified for targeted support and 
improvement under Sec.  200.19(b)(1) or (2).
    Comments: One commenter suggested the Department eliminate any 
requirement to identify comprehensive support and improvement schools 
beyond those that are in the lowest-performing five percent of all 
title I schools in the State and any public high school in the State 
failing to graduate one-third or more of its students. The commenter 
also suggested that the Department eliminate the targeted support and 
improvement category.
    Discussion: Section 1111(c)(4)(D) of the ESEA, as amended by the 
ESSA, requires that each State identify three types of schools for 
comprehensive support and improvement: Those that are the lowest-
performing five percent of all title I schools, all public high schools 
failing to graduate one third or more of their students, and all title 
I schools with low-performing subgroups that were originally identified 
for targeted support and improvement but have not met the LEA-
determined exit criteria after a State-determined number of years. 
Additionally, section 1111(d)(2)(A) requires States to identify schools 
with consistently underperforming subgroups for targeted support and 
improvement, and section 1111(d)(2)(C) requires identification of 
schools if a subgroup, on its own, is performing as poorly as students 
in the lowest-performing five percent of title I schools, i.e., a low-
performing subgroup. Given these statutory requirements, the Department 
declines to make changes in this area.
    Changes: None.
    Comments: One commenter suggested that the Department add a 
requirement that a school identified for comprehensive support and 
improvement must provide support through the Native American language 
of instruction to those students instructed primarily in a Native 
American language, and provide such support through the Native American 
language based in the structure and features of the language itself 
such that it does not limit the preservation or use of the Native 
American language.
    Discussion: We appreciate the commenter's emphasis on ensuring that 
interventions in comprehensive support and improvement schools align 
with the unique characteristics and goals of schools that provide 
instruction primarily in a Native American language. We believe that, 
in general, the concerns of the commenter would be addressed through 
key components of the school improvement process, such as a needs 
assessment and consultation requirements, both of which could emphasize 
the need for instructional interventions to be delivered through the 
specific Native American language used in the school. We encourage 
States and districts to work with such schools to address the required 
components of the school improvement process, while also maintaining 
the core aspects of the Native Language instructional program.
    We note that it may not be necessary for some interventions 
developed and implemented as part of a school's comprehensive or 
targeted support and improvement plan (e.g., an early warning system 
aimed at curbing chronic absenteeism) to be delivered in a Native 
American language. The specific suggestion that the supports be 
provided to students in a particular language is beyond the scope of 
these regulatory provisions, which address comprehensive support and 
improvement for a school in general (see examples in Sec.  
200.21(d)(3)), rather than to students individually. Therefore, we 
decline to make the use of Native American language a blanket 
requirement for such interventions.
    Changes: None.
    Comments: One commenter requested that the Department require 
States to identify schools for comprehensive support and improvement 
every year.
    Discussion: While the statute and proposed regulations provide 
States with the flexibility to identify schools for comprehensive 
support and improvement each year, section 1111(c)(4)(D)(i) of the 
ESEA, as amended by the ESSA, requires States to identify schools no 
less than once every three years. The change requested by the commenter 
would not be consistent with this statutory flexibility.
    Changes: None.
    Comments: Some commenters encouraged the Department to clarify that 
States may adopt or continue more rigorous systems for school and 
subgroup accountability than those required by the statute and 
regulations. For example, the commenters suggested clarifying that a 
State could identify all high schools with a single subgroup that has a 
graduation rate at or below 67 percent, rather than only schools where 
the all students group has a graduation rate at or below 67 percent. 
Additionally, one commenter suggested that the Department clarify that 
States can identify more than the lowest performing five percent of 
title I schools.
    Discussion: We appreciate the commenters' interest in clarifying 
that States have additional flexibility to design and implement 
accountability systems that go beyond the minimum requirements of the 
ESEA, as amended by the ESSA, and corresponding regulations. For 
purposes of identifying schools to meet the Federal requirements for 
school identification and to determine eligibility for Federal funds, 
including school improvement funds under section 1003 of the ESEA, 
States must use the applicable statutory and regulatory definitions, 
and we believe the regulations should reflect these minimum 
requirements. States may go beyond these minimum requirements by 
identifying additional categories of schools, such as Warning Schools 
or Reward Schools. Likewise, they may identify for comprehensive or 
targeted support and improvement additional schools that do not meet 
the definitions for those categories of

[[Page 86135]]

schools, but any such additional schools would not be eligible to 
receive Federal funds--including school improvement funds under section 
1003 of the ESEA--that are specifically for schools identified for 
comprehensive or targeted support and improvement, as defined in the 
statute. We believe that further clarification on this issue is more 
appropriate for non-regulatory guidance.
    We recognize, however, that the language in the proposed 
regulations stating that a State's identification of schools for 
comprehensive support and improvement must include ``at a minimum'' the 
three types of schools specified in the statute and regulations, and 
similar language regarding the two types of schools specified in the 
statute and regulations for targeted support and improvement, may have 
created some confusion as to whether a State has authority to identify 
additional types of schools for comprehensive and targeted support and 
improvement, and thereby to make such additional schools eligible for 
funds that are to be provided specifically to schools identified for 
comprehensive or targeted support and improvement. To clarify this 
issue, we are removing the words ``at a minimum'' from those paragraphs 
of the final regulations.
    Additionally, section 1111(c)(4)(D)(i)(I) of the ESEA, as amended 
by the ESSA, is clear that State must identify ``not less than'' the 
lowest-performing five percent of title I schools for comprehensive 
support. To clarify that this permits a State to identify more than the 
lowest-performing five percent of title I schools (e.g., the bottom ten 
percent of title I schools or five percent of each of title I 
elementary, middle, and high schools), we have revised the regulatory 
language to include this statutory flexibility.
    Changes: We have removed the phrase ``at a minimum'' from Sec.  
200.19(a) and (b). We have also revised Sec.  200.19(a)(1) to include 
the phrase ``not less than'' in describing the lowest-performing 
schools identified for comprehensive support.
Lowest-Performing Schools
    Comments: One commenter expressed support for the requirement to 
identify the lowest-performing five percent of schools, but another 
commenter opposed the implication of the requirement that a State could 
never have a system in which all schools were successful.
    Discussion: The regulation requiring identification of the lowest-
performing schools implements section 1111(c)(4)(D)(i)(I) of the ESEA, 
as amended by the ESSA, which requires that each State identify not 
less than its lowest-performing five percent of title I schools for 
comprehensive support and improvement.
    Changes: None.
    Comments: Several commenters raised concerns that proposed Sec.  
200.19(a)(1) would require each State to identify the lowest-performing 
five percent of schools at each of the elementary, middle, and high 
school levels for comprehensive support and improvement. Other 
commenters found this requirement inconsistent with section 
1111(c)(4)(D)(i)(I) of the ESEA, which requires the identification of 
the lowest-performing five percent of title I schools in the State. One 
commenter specifically requested that States have flexibility to 
identify the lowest-performing schools across grade spans, while 
another commenter warned that such flexibility could result in not 
identifying any schools in a particular grade-level (if, for example, 
all of a State's elementary schools were high-performing but most 
middle schools were performing poorly).
    Discussion: We agree with the commenters that the proposed 
requirements may have created confusion with respect to whether States 
were required to identify the lowest-performing five percent of title I 
schools at each of the elementary, middle, and high school levels. This 
was not our intent, and we are revising the final regulations to 
eliminate the reference to each grade span, although a State could 
choose to identify five percent of title I schools at each grade span. 
While we appreciate that a State could identify more schools in a 
particular grade span than another, we believe it is unlikely that a 
State would not identify any schools in a grade span and do not believe 
it is appropriate to require a State to identify schools in each grade 
span if it is otherwise identifying the lowest-performing five percent 
of all title I schools in the State.
    Changes: We have revised Sec.  200.19(a)(1) to clarify that each 
State must identify the lowest-performing five percent of its title I 
schools, without reference to particular grade spans.
    Comments: Commenters raised concerns about the proposed requirement 
that States identify the lowest-performing five percent of all title I 
schools in the State based on each school's summative rating among all 
students. Some of these commenters opposed the requirement because they 
generally oppose the requirement to provide each school with a 
summative rating and, as a result, oppose the requirement that it be 
used for school identification. Another commenter questioned whether 
summative ratings will be precise enough to separate a school at the 
fifth percentile from a slightly higher ranked school. Other commenters 
suggested specific approaches or flexibilities related to identifying 
the lowest-performing five percent of schools, such as using school 
academic proficiency rates, a combination of assessment data and other 
measures, such as parent and climate surveys and graduation rates, 
methods similar to those used to identify priority schools under ESEA 
flexibility, or a combination of summative ratings and factors related 
to school capacity and district support.
    Discussion: Section 1111(c)(4)(D) of the ESEA, as amended by the 
ESSA, requires States to identify schools for comprehensive support and 
improvement based on the State's system of annual meaningful 
differentiation, which includes multiple indicators beyond statewide 
assessment results. Moreover, as required under Sec.  200.18(a)(4), a 
State's system of meaningful differentiation must result in a summative 
determination that is based on a school's performance on all 
indicators, but does not include other factors, such as district 
capacity or commitment. Therefore, a State cannot identify a school as 
among its lowest-performing schools for comprehensive support and 
improvement based on a single indicator, such as student performance on 
the statewide assessments, nor incorporate into such identification 
factors that are not indicators in its statewide accountability system. 
However, as noted previously, States have the ability to identify more 
than five percent of title I schools if the State determines such 
identification is appropriate and useful to ensure additional low-
performing schools receive support. Further, as noted in the discussion 
on Sec.  200.18, each State retains significant discretion to design 
its system of meaningful differentiation and may incorporate a wide 
range of academic and non-academic factors in the indicators that will 
be used for the providing a summative determination for each school and 
identification of the lowest-performing 5 percent of title I schools. 
We are also revising Sec.  200.18(a)(4) to allow a State to use the 
summative determinations discussed in the statute (i.e., comprehensive 
support and improvement, targeted support and improvement, not 
identified for support) and are making corresponding changes to Sec.  
200.19(a)(1) to incorporate this flexibility.
    Changes: Consistent with the changes to Sec.  200.18, we have 
revised

[[Page 86136]]

Sec.  200.19(a)(1) to require States to identify at least the bottom 
five percent of title I schools consistent with the summative 
determinations provided under Sec.  200.18(a)(4).
    Comments: One commenter suggested that once summative ratings were 
used to identify the bottom five percent of title I schools, teachers 
from the top five percent of schools should be sent to the bottom five 
percent of title I schools to help them improve.
    Discussion: Under the ESEA, as amended by the ESSA, school 
districts are responsible for determining appropriate interventions in 
schools identified for comprehensive support and improvement.
    Changes: None.
    Comments: None.
    Discussion: Under Sec.  200.18 of the regulations, States must 
include the performance of all students in calculating a school's 
performance on each of the accountability indicators under Sec.  
200.14, as well as in calculating the school's summative determination. 
Therefore, it is unnecessary to refer to ``all students'' in Sec.  
200.19(a)(1), which requires States to identify the lowest-performing 
five percent of title I schools for comprehensive support and 
improvement.
    Additionally, consistent with the existing regulations and practice 
across many States, Sec.  200.20 allows a State to average school-level 
data across grades and across no more than three years in determining a 
school's performance for accountability purposes. Therefore, the 
Department is removing references in Sec.  200.19(a)(1) to averaging 
summative determinations over no more than three years because, 
although States may use data that have been averaged over up to three 
years to calculate performance on indicators consistent with Sec.  
200.20, the determinations themselves are not averaged. For clarity, we 
are also removing other references to data averaging throughout Sec.  
200.19 because Sec.  200.20 provides the full parameters under which 
States may average school-level data over school years and across 
grades.
    Changes: We have revised Sec.  200.19(a)(1) to: (1) Remove 
references to ``all students,'' and (2) remove references to averaging 
summative ratings (now summative determinations in the final 
regulations) over no more than three years. We have also removed a 
reference from data averaging in Sec.  200.19(c)(2).
Low High School Graduation Rate
    Comments: Some commenters opposed the 67 percent graduation rate 
threshold for identification of high schools for comprehensive support 
and improvement, particularly if applied to dropout recovery high 
schools. Another commenter recommended identifying for comprehensive 
support and improvement the lowest 10 percent of high schools based on 
graduation rates, similar to the requirement that States identify the 
lowest-performing five percent of all title I schools.
    Discussion: The regulations are consistent with section 
1111(c)(4)(D)(i)(II) of the ESEA, as amended by the ESSA, which 
requires States to identify all public high schools in the State that 
fail to graduate one-third or more of their students. Section 
200.18(d)(1)(iii), which contains provisions that were included in 
proposed Sec.  299.17, allows a State to use a differentiated 
accountability approach for schools that serve special populations, 
including dropout recovery high schools.
    Changes: None.
    Comments: A number of commenters supported the Department's 
proposal to require States to consider only the four-year adjusted 
cohort graduation rate in identifying low graduation rate high schools 
for comprehensive support and improvement and to permit a State to set 
a threshold higher than 67 percent in identifying such schools. One 
commenter suggested that the Department clarify that the threshold for 
such determination was inclusive of schools with a graduation rate of 
67 percent, rather than just schools with graduation rates below 67 
percent, and that this criterion applies to all public high schools in 
the State, not just those that receive funds under title I of the ESEA.
    Discussion: We appreciate the commenters' support for the exclusive 
use of the four-year adjusted cohort graduation rate in identifying low 
graduation rate high schools and agree that a school with a graduation 
rate of 67 percent must be identified, consistent with the statutory 
requirement that the State identify each public high school that fails 
to graduate one third or more of its students; we are revising the 
regulations to clarify this point. However, we do not believe it is 
necessary to further clarify that States must identify all public low 
graduation rate high schools, not just schools receiving title I funds, 
for comprehensive support and improvement, given that the statute and 
regulations are clear on this point.
    Changes: We have revised Sec.  200.19(a)(2) to specify that a high 
school with a four-year adjusted cohort graduation rate at or below 67 
percent must be identified for comprehensive support and improvement.
    Comments: Several commenters suggested that the regulations be 
modified to allow States to identify low graduation rate high schools 
based on the four-year adjusted cohort graduation rate, an extended-
year adjusted cohort graduation rate, or a combination of these rates. 
Similarly, one commenter suggested that a State be allowed to use an 
extended-year adjusted cohort graduation rate for this purpose, 
provided the State sets a higher graduation rate threshold (e.g., 70 
percent) for identifying schools based on an extended-year rate.
    Some commenters believe that an extended-year adjusted cohort 
graduation rate is a more appropriate measure because it would 
recognize the importance of serving students who may take longer than 
four years to graduate. Many of these commenters suggested that the use 
of the four-year adjusted cohort graduation rate only to identify 
schools is inconsistent with the inclusion, at the State's discretion, 
of extended-year adjusted cohort graduation rates in the calculation of 
long-term goals, measurements of interim progress, and indicators under 
section 1111(c)(4)(A)(i)(I)(bb)(BB) and 1111(c)(4)(B)(iii)(II) of the 
ESEA and proposed Sec. Sec.  200.13-200.14. Some of these commenters 
also stated that the statute's silence on the rate to be used for 
purposes of identifying schools should be interpreted as providing 
States flexibility in this area.
    Commenters were particularly concerned that identifying schools 
based solely on the four-year adjusted cohort graduation rate would 
discourage schools from serving over-age or under-credited youth who 
may take longer than four years to graduate, is inconsistent with many 
States' provision of a Free Appropriate Public Education (FAPE) until a 
student turns 21, and would inappropriately identify alternative 
schools such as dropout recovery schools, schools for students in 
neglected or delinquent facilities, and schools for recently arrived 
immigrants. One commenter stated the proposed regulations were 
inconsistent with title IV of the ESEA, which creates a priority for 
charter schools to serve students at risk of dropping out or who have 
dropped out of school (Section 4303(g)(2)(E) of the ESEA) and with the 
Workforce Innovation and Opportunity Act (WIOA), which encourages 
schools and States to reengage out of school youth and provide a high 
school diploma as a preferred credential for those aged 16 to 24. 
Another commenter recommended that the Department

[[Page 86137]]

allow dropout recovery schools to collect and report one-year 
graduation rates in place of the four-year and extended-year adjusted 
cohort graduation rates because using even the extended-year rate would 
over-identify such schools.
    A few commenters noted that the Department previously recognized 
the need for flexibility under its 2008 title I regulations by allowing 
States to use a four-year adjusted cohort rate and an extended-year 
adjusted cohort graduation rate in calculating AYP for high schools. 
Other commenters suggested that a more nuanced approach that allowed a 
State to use an extended-year rate for certain alternative education 
programs would be appropriate. One commenter noted that, under the 
proposed regulations, nearly all of the alternative high schools in its 
State would be identified.
    Discussion: We agree with commenters that it is vital for States, 
LEAs, and schools to serve students who have been traditionally 
underserved because of their age or lack of credits, and that programs 
and priorities like those in title IV of the ESEA and the WIOA are 
essential to support these students. However, we also seek to ensure 
that States identify and support high schools that fail to graduate 
one-third of their students, as required by section 
1111(c)(4)(D)(i)(II) of the ESEA, as amended by the ESSA. The four-year 
adjusted cohort graduation rate is the primary measure of graduation 
rates within the statewide accountability system, including the 
Graduation Rate indicator, long-term goals, and measurements of interim 
progress. Therefore, identifying low graduation rate high schools using 
the four-year adjusted cohort graduation rate is critical to ensuring 
that when schools fail to graduate one-third of their students, they 
are identified and receive appropriate and meaningful supports so that 
each of their students can graduate. Indeed, using the four-year 
adjusted cohort graduation rate is essential to helping ensure that low 
graduation rate high schools are identified and receive appropriate and 
meaningful supports, even if a State establishes a graduation rate 
threshold that is higher than 67 percent.
    However, we recognize that for a small subset of schools that serve 
unique populations of students, an extended-year rate may be a more 
appropriate indicator of a school's performance, and we have revised 
Sec.  200.18(d)(1)(iii) to clarify that States have flexibility to 
develop and implement alternate accountability methods--which may 
include the use of extended-year graduation rates--for schools designed 
to serve special student populations, including alternative schools, 
dropout recovery programs, and schools for neglected and delinquent 
youth. Under this provision, a State could, for example, propose 
through its State plan to use a five- or six-year adjusted cohort 
graduation rate to determine if an alternative or dropout recovery 
school's graduation rate was 67 percent or less for the purposes of 
identifying those schools.
    Given this flexibility, the Department does not believe that 
requiring States to use the four-year adjusted cohort graduation rate 
will result in the inappropriate or over-identification of schools that 
primarily serve special populations of students.
    Further, in response to commenters who noted the statute's silence 
on the particular rate to use for identification of low graduation rate 
high schools, given the Secretary's rulemaking authority under GEPA, 
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (see 
discussion of the Department's general rulemaking authority under the 
heading Cross-Cutting Issues), it is not necessary for the statute to 
specifically authorize the Secretary to issue a particular regulatory 
provision. Moreover, we do not agree that Congress' silence on which 
graduation rate is to be used for purposes of identifying schools 
precludes the Department from clarifying the requirement. To the 
contrary, given the specific references to extended-year rates in the 
statutory provisions regarding goals, measurements of interim progress, 
and accountability indicators, it seems clear that if Congress intended 
to permit States to use an extended-year rate for purposes of 
identifying schools, it would have specified. Accordingly, we believe 
that the clarification in Sec.  200.19(a)(2) that identification of low 
graduation rate high schools is to be based on the four-year adjusted 
cohort graduation rate falls squarely within the scope of section 
1111(c) of the ESEA, as amended by the ESSA, consistent with section 
1111(e) and is reasonably necessary to ensure compliance with the 
requirements in section 1111(c)(4)(D)(i)(II) and, as such, constitutes 
an appropriate exercise of the Department's rulemaking authority.
    Changes: None.
    Comments: Some commenters suggested that the Department allow 
States, in identifying low graduation rate high schools, to use a non-
cohort graduation rate or to include students who attain an alternate 
diploma in determining if a school's graduation rate was 67 percent or 
less. Another commenter requested that the Department allow States to 
include students who have met all the terms of their IEPs as graduates.
    Discussion: While we understand the commenters' interest in 
recognizing the support schools provide to all students, regardless of 
whether those students receive a regular high school diploma, sections 
8101(23)(A)(ii) and 8101(25)(A)(ii) of the ESEA and related regulations 
in Sec.  200.34 already explicitly allow States to include students 
with the most significant cognitive disabilities who take an alternate 
assessment based on alternative academic achievement standards, meet 
certain other criteria, and receive an alternate diploma, in the 
State's adjusted cohort graduation rate or rates. The statute expressly 
prohibits States from including students that earn a high school 
equivalency diploma or other alternate diploma in the State's adjusted 
cohort graduation rate or rates. Therefore, we decline to allow States 
to use measures other than the four-year or extended-year adjusted 
cohort graduation rates, calculated consistently with the statutory and 
regulatory requirements, to identify high schools for the purposes of 
comprehensive support and improvement.
    Changes: None.
Chronically Low-Performing Subgroup
    Comments: Some commenters asserted that the Department created a 
third category of comprehensive support schools, those with chronically 
low-performing subgroups, that was not in the statute. One commenter 
proposed making it clear that it was up to States to include this 
category of schools through the development of a State plan. Another 
commenter noted the statute uses the term consistently underperforming 
subgroup, but does not refer to chronically low-performing subgroups.
    One commenter suggested that the Department reconsider its 
definition of chronically low-performing subgroup schools and move this 
definition into non-regulatory guidance. The commenter is concerned 
that this requirement, in conjunction with other provisions in this 
section, will result in very high rates of identification of schools 
for comprehensive support and improvement.
    Discussion: The chart at the beginning of this section provides a 
reference guide on the types of schools that must be identified for 
comprehensive support and improvement or targeted support and 
improvement under the law. With respect to ``chronically low-performing

[[Page 86138]]

subgroups,'' that term is not specifically used in the statute but is 
the term we are using in the regulations to identify a category of 
schools described in two sections of the ESEA. Section 1111(d)(2)(C) of 
the ESEA, as amended by the ESSA, requires each State to identify 
schools with low-performing subgroups (i.e., those with subgroups who, 
on their own, are performing as poorly as the lowest-performing five 
percent of all title I schools) for targeted support and improvement 
and these schools also must receive additional targeted support. 
Section 1111(c)(4)(D)(i)(III) then states that if these schools do not 
improve after implementing a targeted support and improvement plan over 
a number of years, they must be identified for comprehensive support 
and improvement. When these schools are first identified for targeted 
support and improvement, they are referred to in the regulations as 
schools with ``low-performing subgroups''; however, if they do not 
improve over a State-determined number of years, they must be 
identified for comprehensive support and improvement. The Department is 
referring to these schools as schools with ``chronically low-performing 
subgroups'' for the sake of clarity because the statute does not 
provide a specific term for them and a term is needed to clarify for 
States their statutory obligations with respect to these schools.
    Changes: None.
    Comments: Several commenters opposed the proposed requirement that 
States identify for comprehensive support and improvement any title I 
school with a low-performing subgroup that has not improved after 
implementing a targeted support and improvement plan over no more than 
three years. In particular, commenters believed that the proposed 
requirement would force States to set a three-year timeline for the 
exit criteria for a school with a low-performing subgroup and would 
likely result in the over-identification of schools with chronically 
low-performing subgroups. The commenters referred to section 
1111(d)(3)(A)(i)(II) of the ESEA, as amended by the ESSA, which 
requires States to set exit criteria for schools with low-performing 
subgroups and to determine the number of years by which, if such a 
school is a title I school that has not met the exit criteria, it must 
be identified for comprehensive support and improvement. One commenter 
suggested, in addition to modifying the regulations to reflect that the 
State determine the number of years before a school with a low 
performing subgroup be identified for comprehensive support, that 
States publish a list, at least once every three years, of the schools 
with low-performing subgroups that are identified for targeted support 
and improvement that also must receive additional targeted support 
because they have one or more low-performing subgroups that are still 
identified as such because they have not yet met the State's exit 
criteria. Another commenter stated that three years was too long to 
permit a school to languish as a school receiving additional targeted 
support before it is identified for comprehensive support, and would 
result in students in such schools not receiving timely support.
    Discussion: Section 1111(c)(4)(D)(i)(III) requires States to 
identify schools with chronically low-performing subgroups for 
comprehensive support and improvement at least once every three years. 
Section 1111(d)(3)(A)(i)(II) authorizes States to establish statewide 
exit criteria for such schools. Under this same section, if those 
criteria are not satisfied in a State-determined number of years, those 
schools that receive title I funds must be identified for comprehensive 
support and improvement. The final regulations reflect these statutory 
requirements. Within these requirements, States still have discretion 
regarding the timelines and exit criteria. Thus, we encourage each 
State to carefully consider the various timelines for school 
identification it must implement to meet its statutory and regulatory 
obligations. Finally, we do not believe that an additional reporting 
requirement is necessary as States and LEAs must annually publish State 
and local report cards that include information about schools 
identified for support and improvement, including those with low-
performing or chronically low-performing subgroups.
    Changes: The Department has revised Sec.  200.19(a)(3) to clarify 
that States determine the number of years over which a school with a 
low-performing subgroup identified for targeted support under Sec.  
200.19(b)(2) may implement a targeted support plan before the State 
must determine that the school has not met the State's exit criteria 
and, if it receives title I funds, identify the school for 
comprehensive support and improvement. We have made a corresponding 
change to Sec.  200.22(f)(2).
    Comments: One commenter opposed the requirement that a school be 
identified for comprehensive support and improvement if a single 
subgroup's low performance would lead to such identification. In 
particular, the commenter was concerned that requiring a school with a 
single low-performing subgroup to be identified for comprehensive 
support and improvement would dilute State support services and 
funding, diminishing support for schools with greater needs.
    Discussion: The identification of schools with chronically low-
performing subgroups for comprehensive support and improvement if they 
do not improve after implementing a targeted support and improvement 
plan over a State-determined number of years is required by section 
1111(c)(4)(D)(i)(III) of the ESEA, as amended by the ESSA, and reflects 
the key focus of title I on closing educational achievement gaps.
    Changes: None.
Targeted Support and Improvement, in General
    Comments: One commenter suggested that the Department amend 
proposed Sec.  200.19(b) to encourage States to consider third-grade 
reading scores as one measure that can trigger the need for targeted 
support.
    Discussion: The Department recognizes that there are a wide range 
of measures that States may choose to incorporate into their systems of 
annual meaningful differentiation of schools, including for purposes of 
identifying schools for targeted support and improvement, but we 
believe the inclusion of any additional measures should be left to 
State discretion.
    Changes: None.
    Comments: Several commenters recommended that the Department remove 
proposed Sec.  200.19(b) and allow States to determine the parameters 
for identifying schools for targeted support and improvement. Some of 
these commenters argued that the proposed regulations would result in 
the identification of more schools than required by the statute. One 
commenter was concerned that the number of schools identified within 
this category would overwhelm State title I staff that support school 
improvement, leading to inadequate support for such schools. Another 
commenter noted that the law requires identification of the lowest-
performing five percent of title I schools, but failed to recognize the 
law also requires identifying schools for targeted support, and said 
that the proposed regulations require school identification based on 
subgroup status, which would result in States exceeding what the 
commenter believed to be a statutory limit of five percent. One 
commenter asserted that proposed Sec.  200.19(b) violated section

[[Page 86139]]

1111(e)(1)(B)(iii)(V) of the ESEA because it specifies requirements for 
differentiating schools for targeted support and improvement.
    Discussion: Section 1111(c)(4)(C)(iii) and section 1111(d)(2)(A) of 
the ESEA, as amended by the ESSA, require a State to use its method for 
annual meaningful differentiation, based on all indicators, to identify 
any public school in which one or more subgroups of students is 
consistently underperforming, so that the LEA for the school can ensure 
that the school develops a targeted support and improvement plan. 
Section 1111(d)(2)(D) further requires that, if a subgroup of students 
in a school, on its own, has performed as poorly as all students in the 
lowest-performing five percent of title I schools that have been 
identified for comprehensive support and improvement, the school must 
be identified for targeted support and improvement and implement 
additional targeted supports, as described in section 1111(d)(2)(C). 
Given these explicit statutory requirements regarding the schools that 
must be identified for targeted support and improvement, which are 
incorporated into Sec.  200.19(b), we disagree with commenters who 
asserted that the requirements in this regulatory provision are not 
explicitly authorized by the statute. Further, we disagree with 
comments asserting that Sec.  200.19(b) is inconsistent with section 
1111(e)(1)(B)(iii)(V) of the ESEA; Sec.  200.19(b) does not prescribe a 
specific methodology to meaningfully differentiate or identify schools. 
Rather, it simply clarifies the two types of schools that the statute 
requires to be identified for targeted support and improvement. States 
retain flexibility to determine precisely how they will identify these 
schools. For example, States have discretion to determine how they will 
identify schools with subgroups that are performing as poorly as 
schools that are in the lowest-performing five percent of title I 
schools. Although we appreciate the commenters' concerns about the 
limited capacity of States and LEAs to support all identified schools, 
because the requirements regarding which schools to identify for 
targeted support and improvement are statutory (section 1111(d)(2)(A) 
and (D) of the ESEA), we decline to make the suggested changes. 
However, we recognize that language in Sec.  200.19(b)(1) allowing 
States to identify, at the State's discretion, schools that miss the 95 
percent participation rate requirement for all students or a subgroup 
of students, within the category of schools with consistently 
underperforming subgroups identified for targeted support, conflated a 
statutory requirement and regulatory flexibility. While, under Sec.  
200.15(b)(2)(iii), States retain the option to identify such schools 
for targeted support and to require these schools to implement the 
requirements under Sec.  200.22, we are removing the reference to these 
schools in Sec.  200.19(b)(1) because schools with low participation 
rates may not necessarily meet the State's definition of consistently 
underperforming subgroups.
    Changes: We have removed language in Sec.  200.19(b)(1) that 
referred to schools identified under Sec.  [thinsp]200.15(b)(2)(iii).
Low-Performing Subgroup
    Comments: One commenter was concerned that the requirement to 
identify schools with subgroups performing as poorly as the lowest-
performing five percent of title I schools would require States to 
generate summative ratings for individual subgroups of students. The 
commenter noted that under ESEA flexibility, the commenter's State 
identified the lowest-achieving five percent of schools solely on the 
basis of academic proficiency rates of the all students group. Another 
commenter noted that the statute refers to subgroups performing as low 
as the lowest-performing five percent of title I schools, but does not 
require that States look at the results for the all students group or 
use a summative rating in identifying schools.
    Discussion: We understand the commenters' concern that a State may 
need to undertake additional analysis at the subgroup level to identify 
when an individual subgroup is performing as poorly as students in the 
lowest-performing five percent of title I schools. The statute requires 
that States identify schools based on its system of annual meaningful 
differentiation which relies on multiple measures; therefore, an 
approach that only considered academic proficiency rates would be 
inconsistent with the ESEA, as amended by the ESSA. We generally agree 
with the commenters that States may take different approaches to 
identify a school with at least one subgroup that is as low performing 
as the lowest-performing five percent of title I schools, but section 
1111(d)(2)(C) requires that a State identify schools with low-
performing subgroups based on the same methodology it uses to identify 
the lowest-performing five percent of title I schools. We are revising 
the regulations to clarify that States must use the same approach to 
identify schools with low-performing subgroups as they do to identify 
the lowest-performing five percent of all title I schools.
    The regulations do not require reporting of subgroup-specific 
summative determinations. However, they do require a consistent 
approach in order to ensure that States are meeting the requirement in 
section 1111(d)(2)(C) of the ESEA, as amended by the ESSA, to identify 
each school with an individual subgroup whose performance on its own 
would result in the school's identification in the lowest-performing 
five percent of title I schools.
    Changes: We have revised Sec.  200.19(b)(2) to remove the 
requirement that a State compare each subgroup's performance to the 
summative rating (now summative determination in the final regulations) 
of all students in the lowest-performing five percent of title I 
schools in order to identify schools with low-performing subgroups. 
Instead, States must use the same methodology they use to identify the 
lowest-performing five percent of title I schools under Sec.  
200.19(a)(1) to identify schools with low-performing subgroups.
    Comments: One commenter stated that the proposed regulations helped 
clarify the statutory requirements around identifying schools for 
targeted support and improvement and additional targeted support, but 
encouraged the Department to provide States with additional flexibility 
in identifying such schools. A few commenters objected to the 
Department's proposed definition of low-performing subgroups. They said 
the proposed definition ignores statutory provisions that limit this 
group of schools to a subset of those identified for targeted support 
and improvement because they also include consistently underperforming 
subgroups. Other commenters suggested that the requirement to 
separately identify schools for targeted support and improvement and 
additional targeted support is inconsistent with the statute. Some 
commenters believed that the statute does not contain the requirement 
for two separate sets of schools, and that the proposed requirements 
require separate identification on separate timelines, adding 
significant complexity to accountability systems.
    Discussion: Section 1111(c)(4)(C)(iii) of the ESEA, as amended by 
the ESSA, requires each State to annually identify schools with 
consistently underperforming subgroups for targeted support and 
improvement. Separately, section 1111(d)(2)(C) requires each State to 
identify for targeted support and improvement schools with any subgroup 
of students that, on its own,

[[Page 86140]]

would have resulted in a school's identification as one of the lowest-
performing five percent of title I schools in the State that are 
identified for comprehensive support and improvement. These schools 
must receive additional targeted support under the law and are 
described as schools with low-performing subgroups in the regulations. 
We, therefore, believe that these requirements are wholly consistent 
with the identification requirements and methodologies specified in the 
ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter expressed concern that the proposed 
requirements for identifying schools with low-performing subgroups that 
receive targeted support and improvement, as well as additional 
targeted support, might not be appropriate for high schools, because 
most high schools do not receive title I funds and, therefore, the 
lowest-performing five percent of title I schools may not contain any 
high schools. The commenter recommended that, for the purpose of 
identifying schools with low-performing subgroups at the high school 
level, States be permitted to measure subgroup performance against the 
lowest-performing five percent of all high schools or high-poverty high 
schools, rather than comparing performance only to those high schools 
identified in the lowest-performing five percent of schools that 
receive title I funds.
    Discussion: We appreciate the commenter's concern that there may be 
few high schools identified within a State's lowest-performing five 
percent of title I schools, but section 1111(d)(2)(C) expressly 
requires that a State identify for targeted support and improvement any 
school with a subgroup that, on its own, would have resulted in the 
school's identification as a school in the lowest-performing five 
percent of title I schools. For this reason, the Department declines to 
make the suggested change.
    Changes: None.
    Comments: One commenter was unclear about whether, in identifying 
schools with low-performing subgroups, the State should be comparing a 
subgroup's performance to the performance of the all students group on 
individual accountability indicators, or on the indicators 
collectively. The commenter suggested the Department clarify the 
requirements for school identification broadly, but particularly in 
this area.
    Discussion: We appreciate the commenter's request for 
clarification. We are revising Sec.  200.19(b)(2) to specify that 
schools with low-performing subgroups must be identified using all 
indicators and the same methodology the State uses to identify its 
lowest-performing five percent of title I schools. We will consider 
providing further clarification in non-regulatory guidance to support 
States in identifying each group of schools, consistent with applicable 
statutory and regulatory requirements.
    Changes: We have revised Sec.  200.19(b)(2) to clarify that schools 
with low-performing subgroups are identified by applying the State's 
methodology for identifying its lowest-performing schools to individual 
subgroups.
    Comments: Several commenters expressed concern that the lack of a 
cap on the number of schools that could be identified as having low-
performing subgroups that receive targeted support and improvement, as 
well as additional targeted support, may result in exceeding a State's 
capacity to support effective school improvement or hindering efforts 
to create robust statewide systems of support that are tailored to 
local needs and goals. Some commenters suggested capping the number of 
schools that could be identified for targeted support and improvement 
at five to ten percent of title I schools.
    Discussion: Under the regulations, as under the statute, States 
have flexibility to design their systems for annual meaningful 
differentiation in a way that takes into account the requirement to 
address the needs of low-performing subgroups as well as State capacity 
to support meaningful and effective school improvement. Given that the 
ESEA, as amended by the ESSA, requires identification of all schools 
that fall within the various identification categories, we do not 
believe that providing a cap on the number or percentage of schools 
that are identified for targeted support and improvement, as well as 
additional targeted support, would be consistent with the statute.
    Changes: None.
    Comments: One commenter expressed concern that setting a threshold 
at the lowest-performing five percent of title I schools to identify 
schools with low-performing subgroups for targeted support and 
improvement that also receive additional targeted support could be 
detrimental to students with disabilities because it might not require 
a generally high-performing school to address the needs of a particular 
subgroup until its performance dropped to the level of the lowest-
performing five percent of title I schools.
    Discussion: We believe that the concerns of the commenter are 
addressed in significant part by the requirements that States identify 
any schools with a consistently underperforming subgroup and schools 
with a low-performing subgroup for targeted support and improvement. 
This requirement will help ensure that any school in which the students 
with disabilities subgroup is underperforming receives support even if 
the subgroup is not performing as poorly as the lowest-performing five 
percent of title I schools.
    Changes: None.
Methodology To Identify Consistently Underperforming Subgroups
    Comments: Many commenters supported proposed Sec.  200.19(c)(1), 
which requires States to consider each subgroup's performance over no 
more than two years in identifying schools with consistently 
underperforming subgroups for targeted support and improvement, because 
the regulation would ensure prompt recognition of underperforming 
subgroups so that students in those subgroups receive timely and 
appropriate supports to improve student outcomes, particularly because 
many of these subgroups have been historically underserved. However, 
many commenters opposed two years as an arbitrary timeline for 
identifying consistently underperforming subgroups. Others stated that 
the Department was exceeding its legal authority, with some of these 
commenters pointing specifically to section 1111(e)(1)(B)(iii)(V) of 
the ESEA, as amended by the ESSA, which provides that nothing in the 
ESEA authorizes or permits the Department to prescribe the specific 
methodology used by States to meaningfully differentiate or identify 
schools under title I, part A. Some of these commenters noted that 
identifying schools with a single subgroup underperforming for only two 
years would result in the over-identification of schools, replicate the 
identification of schools under NCLB, and overstretch the capacity of 
States and districts to support identified schools. One commenter also 
noted that using just two years of data could increase the likelihood 
of misidentification because the State would not be able to ensure that 
the data used was valid and reliable. These commenters generally 
suggested that the Department remove all specific timeline 
considerations from the requirements.
    As an alternative, one commenter suggested that a State be 
permitted to identify schools based on whether an individual subgroup 
had been low-performing on the majority of current year indicators or 
demonstrated low

[[Page 86141]]

levels of performance on the same indicator over three years, 
consistent with the flexibility for States to average a school's data 
over three years under proposed Sec.  200.20. One other commenter 
suggested requiring a State to consider at least three years of data in 
identifying schools with consistently underperforming subgroups, while 
another suggested allowing a State to determine its own timeline of no 
more than four years, consistent with other requirements to identify 
schools and evaluate a school's performance on relevant exit criteria 
after no more than four years.
    Discussion: The Department appreciates support from commenters who 
agreed that identifying schools with consistently underperforming 
subgroups based on two years of data is essential to ensuring prompt 
recognition of, and support for, such subgroups of students. We believe 
that this benefit, which is consistent with the focus of title I on 
closing achievement gaps, outweighs the risk of over-identifying 
schools, particularly because a longer timeline could permit entire 
cohorts of low-performing students to exit a school before the school 
is identified for targeted support and improvement. However, we 
appreciate that a State may, due to the specific design of the State's 
accountability system, require flexibility in order to consider the 
performance of subgroups of students over more than two years. We, 
therefore, have revised the regulations to permit a State to consider 
student performance over more than two years, in certain circumstances. 
Specifically, to ensure that students in subgroups that are 
underperforming in schools that have not yet been identified for 
targeted support and improvement will receive support and that a State 
will meet the requirement in section 1111(c)(4)(A)(i)(III) of the ESEA, 
as amended by the ESSA, we are revising Sec.  200.19(c)(1) to require 
that a State that proposes to use a longer timeframe demonstrate how 
the longer timeframe will better support low-performing subgroups of 
students to make significant progress in achieving long-term goals and 
measurements of interim progress, in order to close statewide 
proficiency and graduation rate gaps. In response to commenters who 
believe that provisions in Sec.  200.19(c)(1) were not explicitly 
authorized in the statutory text, these regulations are being issued in 
accordance with the Secretary's rulemaking authority under GEPA, the 
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and need 
not be specifically authorized by the statutory text. Further, issuing 
this requirement is a proper exercise of the Department's rulemaking 
authority as revised Sec.  200.19(c)(1) falls squarely within the scope 
of, and is necessary to reasonably ensure compliance with section 
1111(c)(4), which requires statewide accountability systems to be 
designed to improve student academic achievement and school success, as 
well as with the purpose of title I of the ESEA, to provide all 
children significant opportunity to receive a high-quality education 
and to close educational achievement gaps. For these reasons, the 
regulation does not violate section 1111(e) of the ESEA, as amended by 
the ESSA. Moreover, we do not agree that proposed or revised Sec.  
200.19(c)(1) is inconsistent with section 1111(e)(1)(B)(iii)(V) because 
the regulation does not require the State to use a specific methodology 
in identifying schools with consistently underperforming subgroups. 
More specifically, revised Sec.  200.19(c)(1) permits a State to 
consider subgroup performance over a longer timeframe if it makes the 
required demonstration.
    Changes: Section 200.19(c)(1) has been revised to allow a State, in 
order to identify schools with one or more consistently underperforming 
subgroups, to consider a school's performance among each subgroup of 
students in the school over more than two years, if the State 
demonstrates that a longer timeframe will better support low-performing 
subgroups of students to make significant progress in achieving long-
term goals and measurements of interim progress in order to close 
statewide proficiency and graduation rate gaps, consistent with section 
1111(c)(4)(A)(i)(III) of the Act and Sec.  200.13.
    Comments: A few commenters supported the proposed definitions, 
including the option for a State-determined definition, of consistently 
underperforming subgroups under Sec.  200.19(c)(3). Some commenters 
recommended removing all of the proposed definitions in Sec.  
200.19(c)(3) because the Department does not have the authority to 
require States to choose one of these definitions. Others suggested 
that the Department make it clear that the proposed definitions are 
optional. These commenters generally cited section 1111(c)(4)(C)(iii) 
of the ESEA, as amended by the ESSA, which allows a State to determine 
what constitutes consistent underperformance, and one commenter cited 
section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA, 
which provides that nothing in the ESEA authorizes the Secretary to 
prescribe the specific methodology States use to meaningfully 
differentiate schools.
    Discussion: The Department's regulations provide States with a 
number of options for identifying schools with consistently 
underperforming subgroups of students in a way that promotes equity and 
ensures compliance with one of the stated purposes of title I--to close 
educational achievement gaps--as well as with the requirement for 
accountability systems to be designed to improve student academic 
achievement and school success. The regulations allow a State to 
propose its own definition of consistently underperforming subgroups, 
so long as that definition considers each school's performance among 
each subgroup of students and is based on all the indicators used for 
annual meaningful differentiation, consistent with the weighting 
requirements for such indicators. As such, the regulation is a proper 
exercise of the Department's rulemaking authority (see further 
discussion under the heading Cross-Cutting Issues). We do not agree 
that Sec.  200.19(c)(3) is inconsistent with section 1111(c)(4)(C)(iii) 
or 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA, because 
the regulation does not require the State to use a specific methodology 
in identifying schools with consistently underperforming subgroups.
    However, in reviewing the comments, the Department has determined 
that some of the definitions proposed in Sec.  200.19(c)(3) were 
unclear or inconsistent with the proposed requirement in Sec.  
200.19(c)(2) to consider each indicator used for annual meaningful 
differentiation. Accordingly, we are revising Sec.  200.19(c)(2)-(3) 
for clarity to ensure that: (1) Each State's methodology to identify 
schools with a consistently underperforming subgroup must be based on 
all indicators a State uses for annual meaningful differentiation; and 
(2) States defining consistently underperforming subgroups on the basis 
of long-term goals or measurements of interim progress also consider 
indicators for which the State is not required to establish goals or 
measurements of interim progress. In this way, States defining a 
consistently underperforming subgroup on the basis of its long-term 
goals and indicators can, for example, develop a methodology that 
considers all goals and indicators, even if identification for targeted 
support and improvement is made only on the basis of a single goal or 
indicator.
    Changes: We have revised Sec.  200.19(c)(2)-(3) to clarify that all 
definitions of consistently

[[Page 86142]]

underperforming subgroups must be based on all indicators in the 
accountability system, so that a State's methodology examines a 
school's performance across all indicators, even if a subgroup's 
performance against the State's measurements of interim progress and 
long-term goals or performance on a single indicator is sufficient to 
trigger identification of the school for targeted support and 
improvement.
    Comments: Several commenters specifically opposed the options for 
defining consistently underperforming subgroups of students in proposed 
Sec.  200.19(c)(3)(ii)-(iv), because States would be able to use a 
definition that includes a relative threshold for identification rather 
than an absolute standard and, consequently, only schools with the very 
lowest-performing subgroups would be identified.
    Discussion: We appreciate the commenters' concern that the use of a 
relative measure may narrow the definition of consistently 
underperforming subgroups depending on the range of performance across 
measures within a State. Therefore, while we are retaining a State's 
flexibility to propose a State-determined definition, we are removing 
the proposed options for identifying consistently underperforming 
subgroups of students that included relative measures, such as the size 
of performance gaps between the subgroup and State averages.
    Changes: We have removed the definitions in proposed Sec.  
200.19(c)(ii) through (iv) of the final regulations.
    Comments: Many commenters suggested requiring all States to 
consider a subgroup's performance against the State's long-term goals 
and measurements of interim progress, as described under 
200.19(c)(3)(i), in determining whether a subgroup is consistently 
underperforming.
    Discussion: Sections 1111(c)(4)(C)(iii) and 1111(d)(2)(A) of the 
ESEA, as amended by the ESSA, require that States consider a subgroup's 
performance on all of the indicators in identifying schools with 
consistently underperforming subgroups for targeted support and 
improvement. Because only two of these indicators--the Academic 
Achievement indicator and the Graduation Rate indicator--must be based 
on a State's long term goals and measurements of interim progress, a 
methodology for identifying consistently underperforming subgroups that 
looked only at long-term goals or measurements of interim progress 
would not be consistent with the statute.
    Changes: None.
    Comments: One commenter suggested that the Department provide 
States with two additional options for identifying consistently 
underperforming subgroups: (1) Comparing a subgroup's performance 
against the average performance among all students, or the highest 
performing subgroup, in the school, and (2) comparing a subgroup's 
performance against the all students group, or the highest performing 
subgroup, in the LEA. The commenter also recommended that these 
additional options be used in tandem with a method based on an absolute 
measure, such as a subgroup's performance against a State's long-term 
goals and measurements of interim progress.
    Discussion: We appreciate the commenter's suggestion and believe 
that a State could propose either of the options suggested by the 
commenter under final Sec.  200.19(c)(3)(ii) so long as its proposal 
also met the requirements of 200.19(c)(1)-(2). A State could also 
propose to use one of these options in concert with a subgroup's 
performance against a State's long-term goals and measurements of 
interim progress. Because these approaches could already be proposed by 
a State as part of a State-determined definition of consistently 
underperforming subgroup, we decline to add these specific options to 
the regulations.
    Changes: None.
    Comments: While a few commenters recommended that the Department 
remove the requirement under proposed Sec.  200.19(c)(2) regarding the 
use of indicators, other commenters asked the Department to clarify 
that States must consider a subgroup's performance on each indicator, 
including indicators of School Quality or Student Success, in 
determining which schools have consistently underperforming subgroups. 
Specifically, commenters were concerned that a State could consider 
performance only on a single indicator, such as Academic Achievement, 
but not other indicators in identifying schools with consistently 
underperforming subgroups.
    Discussion: As previously discussed in the second summary of 
changes in the ``Methodology to Identify Consistently Underperforming 
Subgroups'', the Department has modified the regulations to clarify 
that a State must establish a definition of consistently 
underperforming subgroups that is based on all of the indicators, and 
that a school need not be underperforming on every indicator in order 
to be identified for targeted support and improvement. In other words, 
although a State's definition must examine a subgroup's performance on 
all indicators, a school may be identified based on having a subgroup 
that is underperforming on any one (or more) of those indicators. For 
example, although a State cannot systematically look only at each 
subgroup's performance on the Academic Achievement indicator to 
identify schools with low-performing subgroups (it must look at 
performance on all the indicators under Sec.  200.14), it may identify 
an individual school for targeted support and improvement if a subgroup 
in that school is underperforming on the Academic Achievement 
indicator. We appreciate the commenters' concern that this requirement 
was not sufficiently clear in the proposed regulations.
    Changes: We have revised Sec.  200.19(c)(2)-(3) to clarify that all 
definitions of consistently underperforming subgroups must be based on 
all indicators in the accountability system, such that a State's 
methodology examines performance across all indicators, even if a 
subgroup's performance against the State's measurements of interim 
progress and long-term goals or low performance on a single indicator 
is sufficient to trigger identification of the school for targeted 
support and improvement.
    Comments: A few commenters suggested that the Department require a 
State's definition of consistently underperforming subgroups to result 
in the identification of more schools for targeted support and 
improvement than the State identifies for targeted support and 
improvement due to low-performing subgroups.
    Discussion: The statute requires each State to identify two 
categories of schools--those with consistently underperforming 
subgroups for targeted support and improvement and those with low-
performing subgroups for targeted support and improvement that must 
also receive additional targeted support. We believe requiring one 
group to be larger than the other would be arbitrary and inconsistent 
with the requirements to identify all schools that meet the applicable 
definitions. Consequently, we decline to set parameters around the 
number of schools that must be identified in either category.
    Changes: None.
    Comments: One commenter suggested requiring that a State's method 
for identifying consistently underperforming subgroups be 
understandable by all stakeholders to promote transparency.

[[Page 86143]]

    Discussion: We agree that it is important for stakeholders, 
including schools, educators, and parents to understand a State's 
methodology for identifying consistently underperforming subgroups. In 
its State plan and in the description of its system of annual 
meaningful differentiation on its State report card under Sec.  200.30, 
each State must describe its methodology for identifying schools with 
consistently underperforming subgroups. Therefore, we decline to add an 
additional consultation or reporting requirement.
    Changes: None.
Timeline
    Comments: One commenter supported the proposed requirements in 
Sec.  200.19(d)(1) that States must identify: (1) Schools for 
comprehensive support and improvement at least once every three years, 
beginning with identification for the 2017-2018 school year; (2) 
schools with one or more consistently underperforming subgroups for 
targeted support and improvement annually, beginning with 
identification for the 2018-2019 school year; and (3) schools with one 
or more low-performing subgroups for targeted support and improvement 
that must also receive additional targeted support when it identifies 
schools for comprehensive support and improvement, beginning with 
identification for the 2017-2018 school year. Many commenters, however, 
strongly opposed the proposed timelines because they would require 
States to use data from the 2016-2017 school year to identify schools 
by the beginning of the 2017-2018 school year. These commenters 
generally encouraged the Department to move the timeline back one year, 
so that States must identify schools for the first time by the 
beginning of the 2018-2019 school year. A handful of commenters also 
encouraged the Department to move the timeline for identifying schools 
with consistently underperforming subgroups for targeted support and 
improvement back one year, to the beginning of the 2019-2020 school 
year.
    Commenters believed that the delayed timelines they proposed were 
necessary to allow States to engage in more robust consultation with 
stakeholders, to better align with the Department's intended State plan 
submission and review timeline, and to ensure consistency with sections 
1111(c)(4)(D)(i) and 1111(d)(2)(D) of the ESEA, as amended by the ESSA. 
In particular, commenters were concerned that schools would be 
identified on the basis of results generated under States' prior 
accountability systems, using existing indicators with a heavy emphasis 
on test-based data, rather than the broader range of academic and non-
academic indicators required by the ESEA, as amended by the ESSA. They 
suggested that the originally proposed timeline would not allow States 
to meaningfully establish systems--including taking the time to design 
new indicators to satisfy the requirements of the Student Success or 
School Quality indicator--and collect information on new indicators 
that had not previously been part of the accountability system.
    Some commenters also encouraged the Department to allow States, 
under the proposed extended implementation timelines, to maintain their 
lists of identified schools from the 2016-2017 school year into the 
2017-2018 school year consistent with the flexibility for the 2016-2017 
school year under the ESSA transition provisions.
    Discussion: We agree that extending the timelines for 
identification of schools for improvement would better support full and 
effective implementation of the statewide accountability systems, 
consistent with the requirements of the ESEA, as amended by the ESSA, 
and are revising the regulations accordingly. The Department also 
anticipates releasing non-regulatory guidance to support States in 
using the 2017-2018 school year as a transition year, and to ensure 
that States continue to support low-performing schools during this 
time.
    Changes: We have revised Sec.  200.19(d), and made conforming 
revisions throughout the final regulations, to allow States to: (1) 
Identify schools for comprehensive support and improvement no later 
than the beginning of the 2018-2019 school year; (2) identify schools 
with low-performing subgroups for targeted support and improvement that 
also must receive additional targeted support no later than the 
beginning of the 2018-2019 school year, based on data from the 2017-
2018 school year, and (3) allow States to identify schools with 
consistently underperforming subgroups for targeted support and 
improvement no later than the beginning of the 2019-2020 school year. 
We have made also made additional clarifying edits, including 
renumbering and reorganizing this section, that do not change the 
substance of the requirements. Additionally, given revisions to the 
deadlines for submission of consolidated State plans, if a State chose 
to submit its plan in the first application window, it is possible the 
State may be able to begin their process for identifying schools for 
comprehensive and targeted support and improvement sooner than the 
required timeline in order to take advantage of the new multi-measure 
accountability systems established under the ESSA more quickly.
    Comments: Some commenters supported the requirement to identify 
schools for comprehensive and targeted support and improvement by the 
beginning of the school year in order to give schools sufficient notice 
and planning time to implement appropriate interventions. One commenter 
recommended moving identification up by one week so that teachers know 
a school's status before school starts.
    Other commenters opposed the requirement to identify schools by the 
beginning of each school year, primarily because they believed the 
requirement does not take into account State timelines for the 
collection, validation, and reporting of the data that will be used to 
identify schools. Some commenters recommended alternatives to the 
requirement that States identify schools by the beginning of the school 
year. For example, some commenters suggested requiring that schools be 
identified no later than one month after school starts, by the end of 
the first quarter of the school year, in the fall, by December 31 of 
each year, or on a State-determined timeline developed in consultation 
with stakeholders and submitted with State plans.
    Some commenters opposed any specific timeline for school 
identification because they asserted the statute does not identify a 
point during the school year by which identification must occur.
    Discussion: While we understand the challenges associated with 
making accountability decisions by the beginning of the school year, we 
believe that, given the time required for planning and implementing 
high-quality school improvement plans that include meaningful 
consultation with stakeholders, it is imperative that districts and 
schools know they have been identified for comprehensive or targeted 
support and improvement before the beginning of the school year. To 
that point, we are revising the regulation to clarify that it is 
preferable for State to identify schools as soon as possible, 
particularly so LEA and school staff have this information while they 
are engaged in other planning for the school year. Further, we believe 
that requiring identification no later than the start of the school 
year is necessary to reasonably ensure compliance with section 1111(d) 
of the ESEA, as amended by the ESSA, which requires that States develop 
and implement

[[Page 86144]]

plans aimed at improving student performance. It therefore falls 
squarely within the scope of title I, part A of the statute, consistent 
with section 1111(e) of the ESEA, as amended by the ESSA, and within 
our rulemaking authority under GEPA, the DEOA, and section 1601(a) of 
the ESEA, as amended by the ESSA.
    Changes: We have revised Sec.  200.19(d)(2)(i) to clarify that a 
State should identify schools for comprehensive or targeted support and 
improvement as soon as possible, but no later than the beginning of the 
school year for each year in which it identifies schools.
    Comments: Some commenters stated that because cohort graduation 
rates include students who graduate at the end of the summer following 
the regular school year, it would not be feasible to use graduation 
rate data from one school year to identify schools at the beginning of 
the next school year.
    Discussion: We recognize that the use of the preceding year's 
adjusted cohort graduation rate data will be difficult given the 
inclusion of summer graduates. For this reason, we are revising the 
regulations to permit States to lag graduation rate data by one year 
for the purposes of school accountability, including the identification 
of low graduation rate high schools and calculation of the Graduation 
Rate indicator. Additionally, in revising these regulations, we are 
making additional edits to clarify and streamline the regulatory 
requirements for the use of preceding data in school identification.
    Changes: We have revised Sec.  200.19(d)(2) to clarify that States 
generally must use data from the preceding school year to identify 
schools for comprehensive and targeted support and improvement by the 
beginning of each school year, but may use data from the year 
immediately prior to the preceding year to calculate the Graduation 
Rate indicator and to identify high schools with low graduation rates 
for comprehensive support and improvement.

Section 200.20 Data Procedures for Annual Meaningful Differentiation 
and Identification of Schools

Averaging Data
    Comments: None.
    Discussion: The Department is concerned that the use of both the 
terms ``combining'' and ``averaging'' in proposed Sec.  200.20(a) is 
confusing because it suggests that using data from multiple grades 
involves a different procedure than using data from multiple school 
years. Both Sec.  200.20(a)(1) and (a)(2) enable States to include 
greater numbers of students and students in each subgroup in data 
calculations for school accountability, by adding up the total number 
of students in a given subgroup from the current school year and the 
previous two school years, and by adding the total number of students 
in a given subgroup across each grade in a school. For example, a State 
using chronic absenteeism as a School Quality or Student Success 
indicator and selecting to combine data across school years and grades 
would add the number of students in the school that missed 15 days or 
more in each of the past three school years, and divide that number by 
the total number of students in the school, summed across each of the 
past three years--resulting in an indicator based on averages across 
both school years and grades. To clarify that the data procedures for 
combining data across grades are the same as averaging data across 
grades (i.e., in both cases a State would ``combine'' data in order to 
produce an averaged result), we are revising Sec.  200.20(a)(1) by 
replacing the term ``averaging'' with the term ``combining'' in each 
place that it appears, while maintaining the term ``averaging'' to 
describe the general concept in Sec.  200.20(a). We are also revising 
Sec.  200.20(a)(1)(A) to specifically clarify that in combining data 
across multiple schools years for purposes of calculating a school's 
performance on each indicator and determining whether a subgroup of 
students in a school meets the State's minimum n-size, the State's 
uniform procedure for combining data must sum the total number of 
students in each subgroup of students in a school described in Sec.  
200.16(a)(2) across all available years.
    Further, as discussed in response to comments on Sec.  200.19, we 
believe the proposed regulations were not sufficiently clear about 
which school-level data could be considered over multiple years--the 
measures that are included in a particular indicator used for annual 
meaningful differentiation, or a school's overall determination. We are 
revising Sec.  200.20(a) to clarify that the indicators may be averaged 
over up to three school years or across all grades in a school, and 
that these indicators are subsequently used for differentiation and 
identification of schools. Further, we are revising Sec.  200.20(a), as 
previously discussed in response to comments on Sec.  200.15, to 
clarify that a State may average school-level data for the limited 
purpose of meeting the requirement in Sec.  200.15(b)(2), and the 
adjusted cohort graduation rate for purposes of identifying high 
schools with low graduation rates. Any further clarification of these 
requirements will be provided in non-regulatory guidance.
    Changes: We have revised Sec.  200.20(a) to (1) be more consistent 
and clear in using the term ``averaging'' to describe generally how 
school-level data may be used over multiple years or school grades and 
``combining'' to describe the procedures in Sec.  200.20(a)(1) and (2); 
(2) to specify that in averaging data across years a State must sum the 
total number of students in each subgroup of students across all school 
years for purposes of calculating school performance on the indicators 
and whether a particular subgroup meets the State's minimum n-size; and 
(3) to clarify the purposes for which a State may average data across 
years: Calculating indicators used for annual meaningful 
differentiation, meeting the requirement under Sec.  200.15(b)(2), and 
identifying low graduation rate high schools.
    Comments: One commenter suggested that proposed Sec.  200.20 
require that the procedure used for averaging data across school years 
and combining data across grades be identified in LEA report cards, in 
addition to State report cards.
    Discussion: Section 200.32(a)(3) requires each State and LEA report 
card to describe, as part of the description of the accountability 
system, the State's uniform procedure for averaging data across years 
or across grades consistent with Sec.  200.20.
    Changes: None.
    Comments: One commenter recommended allowing States to average date 
used for accountability purposes for more than three school years.
    Discussion: The Department's proposal gives States the flexibility 
to combine data across years or grades because averaging data in this 
manner can increase the data available to consider as part of 
accountability systems, both improving the reliability of 
accountability designations and increasing the number of subgroups in a 
school that meet the State's minimum n-size (e.g., because adding 
together up to three cohorts of students for whom there is available 
data potentially triples the number of students with valid data, 
consistent with final Sec.  200.20(a)(1)(A)). The Department believes 
that averaging data over more than three school years is inconsistent 
with current practice and regulation, ill-aligned with the requirements 
for school identification under the statute (e.g., the identification 
of schools for comprehensive support and improvement at least once 
every three years), and increases the risk of inappropriately masking 
current-year

[[Page 86145]]

school performance--increasing the risk that low-performing schools are 
not identified in a timely fashion.
    Changes: None.
    Comments: Commenters supported the proposed requirement that States 
continue to report data for a single year, without averaging, on State 
and LEA report cards, even if a State averages data across years. Other 
commenters supported the language in this section that allows States to 
average data across school years to meaningfully differentiate schools. 
Commenters noted this flexibility allows States to have more meaningful 
accountability determinations for smaller schools, while also 
minimizing the number of schools that move in or out of a particular 
status from year to year due to n-size limitations.
    Discussion: We appreciate the commenters' support for these 
provisions and agree that this flexibility is an important tool for 
States in designing effective systems of school accountability.
    Changes: None.
    Comments: Some commenters felt that the ESEA, as amended by the 
ESSA, does not authorize the Department to regulate on data averaging 
and that decisions about data averaging should remain with the States. 
Other commenters objected to the proposed requirement that States 
continue to report data that is not averaged for each indicator on 
State and LEA report cards even if a State averages data across years 
for accountability purposes (Sec.  200.20(a)(1)(ii)(B)). The commenters 
asserted that reporting data that is not averaged undermines the 
purpose of averaging, which is to obtain a more statistically valid and 
reliable measure of performance than shorter timeframes such as a 
single year, and that States electing to average data over three years 
should report a rolling average for each indicator each year.
    Discussion: The proposed data averaging procedures are intended to 
provide States with limited additional flexibility to increase the data 
available to consider in the accountability system, thereby improving 
the reliability of accountability determinations and increasing the 
number of subgroups in a school that meet the State's minimum n-size. 
These rationales are not as relevant to reporting, where the key goal 
is to inform parents and other stakeholders (e.g., teachers, principals 
or other school leaders, local administrators) of the performance of 
specific students rather than cohorts of students averaged over 
multiple years.
    Further, we believe the requirement to use the same uniform data 
averaging procedure for all public schools is necessary to ensure that 
the Statewide accountability system is applied in a fair and consistent 
manner to all public schools in a State. Additionally, the requirement 
to report data for a single year, even if a State averages data for 
accountability purposes, is necessary to ensure compliance with the 
requirement in section 1111(h) of the ESEA that report cards be 
presented in an ``understandable and uniform format.'' Accordingly, the 
parameters that the regulation places on a State's use of data 
averaging fall squarely within the scope of section 1111 of the ESEA, 
as amended by the ESSA, consistent with section 1111(e), and constitute 
an appropriate exercise of the Department's rulemaking authority under 
GEPA, the DEOA, and section 1601(a) of the ESEA (see further discussion 
under the heading Cross-Cutting Issues).
    Changes: None.
Partial Enrollment
    Comments: Some commenters objected to the use of the term 
``enroll'' in proposed Sec.  200.20(b) instead of ``attend,'' which is 
the term used in the statute.
    Discussion: The Department believes that enrollment, rather than 
attendance, is a better measure of determining which students a school 
should be held accountable for, both because schools have a 
responsibility to promote and ensure regular attendance and because 
including students in accountability systems on the basis of attendance 
could create an incentive to discourage low-performing students from 
attending school, which is contrary to the purpose of title I to 
provide all children significant opportunity to receive a fair, 
equitable, and high-quality education, and to close educational 
achievement gaps. For this reason, the Department declines to make 
changes to Sec.  200.20(b).
    Changes: None.
    Comments: Commenters also objected to the requirement that students 
enrolled for more than half of the year be included in the calculation 
of school performance for accountability purposes, in part because it 
represents a significant change from the ``full academic year'' 
requirements under the NCLB. Other commenters sought additional 
flexibility for States or LEAs to use existing methods or definitions 
for determining what constitutes partial enrollment or to develop their 
own definitions; including, for example, the percentage of time a 
student is in the school building.
    Discussion: The requirement that the performance of any student 
enrolled for at least half of the school year be included on each 
indicator in the accountability system is based on section 
1111(c)(4)(F) of the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: A few commenters supported the proposed regulations in 
Sec.  200.20(b)(2)(ii) for ensuring students are included in graduation 
rate calculations if they exit school and were only enrolled in a high 
school for part of the school year. Other commenters supported adding a 
requirement, in order to ensure all students are included in the 
calculation of graduation rates, to provide each State the authority to 
reassign students to schools for calculating adjusted cohort graduation 
rates when implementing the partial attendance requirements of ESSA.
    Discussion: We appreciate the support of commenters for these 
provisions and agree that it is critical to ensure accurate calculation 
of adjusted cohort graduation rates. While we disagree that the 
regulations should be amended to provide a State will sole 
responsibility to reassign students to a different cohort, we note that 
Sec.  200.20(b)(2) requires that if a student who was partially 
enrolled exits high school without receiving a regular diploma and 
without transferring to another high school that grants such a diploma 
during the school year, the State establishes a process, described 
further under 200.34, that the LEA must use to assign the student to 
the cohort of a particular high school. In addition, Sec.  
299.13(c)(1)(A)-(B) requires each State receiving funds under part A of 
title I to assure in its State plan that--in applying the approach 
under Sec.  200.20(b) that its LEAs include students who are enrolled 
in the same school for less than half of the academic year and who exit 
high school without a regular diploma and without transferring into 
another high school that grants such a diploma in the calculation of 
adjusted cohort graduation rates--all students are included in the 
denominator of the calculation either for the school in which the 
student was enrolled for the greatest proportion of school days while 
enrolled in grades 9 through 12, or for the school in which the student 
was most recently enrolled.
    Changes: None.

Sections 200.21 and 200.22 Comprehensive and Targeted Support and 
Improvement

    Comments: Several commenters provided general support for the 
clarification in the proposed regulations regarding the actions to be 
taken to support and improve schools identified for comprehensive and 
targeted support

[[Page 86146]]

and improvement, including State and local flexibility to determine the 
appropriate interventions for struggling schools.
    Discussion: We appreciate the general support for the regulations 
on comprehensive and targeted support and improvement.
    Changes: None.
    Comments: Several commenters opposed the requirement that a State 
notify each LEA with a school identified for comprehensive support and 
improvement no later than the beginning of the school year, with one 
commenter stating that the proposed timeline is unreasonable given that 
identified schools may use the first year for planning and need not 
implement improvement plans and another recommending that States 
instead be permitted to develop their own notification timelines as 
part of their State plans.
    Discussion: A clear, regular timeline for identification of schools 
is critical to meet the needs of students, who are likely to have been 
poorly served for years before their schools are identified for 
improvement and whose risk of educational failure only increases if 
identification is further delayed. As previously discussed under Sec.  
200.19, we also believe that given the time required for planning and 
implementing high-quality school improvement plans that include 
meaningful consultation with stakeholders, it is imperative that 
districts and schools know they have been identified for support and 
improvement as soon as possible, but no later than the beginning of the 
school year. Moreover, States and LEAs have faced, and generally met, 
an even earlier school identification timeline for the past decade 
under NCLB.
    Changes: For consistency with revisions to Sec.  200.19(d)(2)(i), 
we are revising Sec.  200.21(a) and Sec.  200.22(a)(1) to clarify that 
a State should notify each LEA with an identified school of such a 
school's identification as soon as possible, but no later than the 
beginning of the school year.
Notice to Parents: Comprehensive and Targeted Support and Improvement
    Comments: Many commenters supported the Department's proposed 
requirements regarding notice to the parents of students enrolled in 
the schools identified for comprehensive and targeted support and 
improvement, including an explanation of how parents can become 
involved in the development and implementation of the support and 
improvement plan.
    Some commenters supported the requirements but suggested additional 
modifications to the proposed notice requirements, including defining 
``promptly'' so as to specify a timeline for notifying parents (e.g., 
no later than 30 or 60 days following identification), extending notice 
requirements to cover students as well as parents, and requiring LEAs 
to pilot their notices (potentially in collaboration with available 
parent or family engagement centers) to ensure they are easily 
understandable by diverse parents.
    Several commenters, however, stated that the proposed parental 
notification requirements exceeded the Department's authority under the 
ESEA, as amended by the ESSA, and recommended eliminating any language 
not in the statute or making Sec.  200.21(b)(1)-(b)(3) permissive 
rather than required.
    Discussion: We appreciate those comments in support of our proposed 
notification requirements. We decline to further define terms (e.g., 
``promptly'') or to otherwise expand requirements related to parental 
notification because we believe States should have flexibility, in 
consultation with their LEAs, to determine a notification process that 
meets local needs and circumstances. At the same time, we believe the 
requirements in Sec.  200.21(b)(1)-(3) are necessary to ensure that 
LEAs and schools, respectively, are able to comply with the 
requirements in section 1111(d)(1)(B) regarding the development and 
implementation of comprehensive support and improvement plans, and in 
section 1111(d)(2)(B) regarding the development and implementation of 
targeted support and improvement plans, ``in partnership with 
stakeholders,'' including parents. Accordingly, these requirements fall 
squarely within the scope of section 1111(d) of the ESEA, as amended by 
the ESSA, consistent with section 1111(e), and within the Department's 
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the 
ESEA, as amended by the ESSA (see further discussion regarding the 
Department's rulemaking authority under the heading Cross-Cutting 
Issues). We, therefore, decline to revise these notice requirements.
    Changes: None.
    Comments: Several commenters made suggestions regarding the content 
of the notice to parents required by Sec. Sec.  200.21(b) and 
200.22(b), including specifying any low-performing subgroup or 
subgroups of students that led to the school's identification, and 
describing available supports and interventions for students who are 
below expected levels in math, reading, or ELP.
    Discussion: Sections 200.21(b) and 200.22(b) require the notice to 
include, among other requirements, the reason or reasons for the 
identification, including, for a school that is identified for targeted 
support and improvement, the specific subgroup or subgroups that led to 
the school's identification. However, we believe the LEA is unlikely to 
have information on available supports and interventions for low-
performing students at the time of initial parental notification, in 
part because a key purpose of such notification is to involve parents, 
in collaboration with other stakeholders, in decisions about the 
supports and interventions for such students that will be included in 
comprehensive or targeted support and improvement plans, as applicable.
    Changes: None.
    Comments: A few commenters suggested a change to the requirement 
that parental notification of a school's identification for 
comprehensive or targeted support and improvement include, if 
applicable, the subgroup or subgroups that led to the school's 
identification because it could reveal personally identifiable 
information. These commenters recommended that the regulations cross-
reference the provision in Sec.  200.16(b) establishing a minimum 
subgroup size for protection of personally identifiable information.
    Discussion: Section 200.16(b) requires that a school is only held 
accountable for subgroup performance if that subgroup meets a State-
determined minimum subgroup size sufficient to yield statistically 
reliable information for each purpose for which disaggregated data are 
used, including for purposes of reporting information under section 
1111(h) of the ESEA, as amended by the ESSA, or for purposes of the 
statewide accountability system under section 1111(c) of the ESEA, as 
amended by the ESSA. Consequently, any notice to parents that includes 
the subgroup or subgroups that led to a school's identification would 
not include a subgroup that did not meet the minimum subgroup size, 
thereby protecting personally identifiable information.
    Changes: None.
    Comments: Some commenters suggested specific modifications to 
proposed Sec.  200.21(b)(2) regarding written and oral translation of 
notices to parents. In particular, rather than requiring oral 
translation when written translation may not be practicable, some 
commenters suggested requiring LEAs to secure written translations for 
at least the most populous language other than English in a school that 
is identified for support and improvement. One

[[Page 86147]]

commenter suggested that the final regulations should require the 
translation of those notices consistent with the Civil Rights Act of 
1964 and Executive Order 13166. Another commenter felt that the 
regulations should require written notice and not rely on oral 
translations. However, another commenter suggested that oral 
translations and alternate formats should be required only to the 
extent practicable. Several commenters suggested that the phrase ``to 
the extent practicable'' should be clarified. One commenter requested 
that all LEAs consider it to be practicable to translate notices into 
American Indian, Alaska Native, and Native Hawaiian languages. This 
commenter also suggested the Department provide assistance in either 
funding or procuring services that will allow States to enforce the 
translation requirements. A few commenters stated that if a notice is 
not translated, it should include information for how a parent can 
request free language assistance from the school or district.
    Other commenters opposed the specific requirements regarding 
written and oral translation because they believe there is no statutory 
authority for the requirement. One commenter specifically stated that 
this is an issue that should be left to the States.
    Discussion: The statute and regulations require that, before a 
comprehensive or targeted support and improvement plan is implemented 
in an identified school, the LEA or school, as applicable, must develop 
such a plan in partnership with stakeholders, including parents. In 
order to ensure that parents are meaningfully included in this process, 
Sec. Sec.  [thinsp]200.21(b) and 200.22(b) require an LEA to provide 
notice to parents of the school's identification that is not only 
understandable and clear about why a school was identified, but also 
enables parents to be engaged in development and implementation of the 
comprehensive or targeted support and improvement plan, as required by 
the statute. These requirements provide greater transparency and help 
parents understand the need for and the process for developing a 
school's comprehensive or targeted support and improvement plan, so 
that they can meaningfully participate in school improvement activities 
and take an active role in supporting their child's education. 
Accordingly, we believe that the requirements regarding written and 
oral translations fall squarely within the scope of, and are necessary 
to ensure compliance with sections 1111(d)(1)(B) and 1111(d)(2)(B) of 
the ESEA, as amended by the ESSA, and therefore constitute a proper 
exercise of the Department's rulemaking authority under GEPA, the DEOA, 
and section 1601(a) of the ESEA and are consistent with section 1111(e) 
(see further discussion under the heading Cross-Cutting Issues).
    We also disagree with commenters that we should require only 
written translations and not allow for oral translations, or that we 
should require oral translations and alternate formats only to the 
extent practicable. Parents with disabilities or limited English 
proficiency have the right to request notification in accessible 
formats. Whenever practicable, written translations of printed 
information must be provided to parents with limited English 
proficiency in a language they understand. However, if written 
translations are not practicable, it is practicable to provide 
information to limited English proficient parents orally in a language 
that they understand. This requirement is consistent with Title VI of 
the Civil Rights Act of 1964 (Title VI), as amended, and its 
implementing regulations. Under Title VI, recipients of Federal 
financial assistance have a responsibility to ensure meaningful access 
to their programs and activities by persons with limited English 
proficiency. It is also consistent with Department policy under Title 
VI and Executive Order 13166 (Improving Access to Services for Persons 
with Limited English Proficiency).
    We decline to further define the term ``to the extent practicable'' 
under these regulations, but remind States and LEAs of their Title VI 
obligation to take reasonable steps to communicate the information 
required by the ESEA, as amended by the ESSA, to parents with limited 
English proficiency in a meaningful way.\24\ We also remind States and 
LEAs of their concurrent obligations under Section 504 and title II of 
the ADA, which require covered entities to provide persons with 
disabilities with effective communication and reasonable accommodations 
necessary to avoid discrimination unless it would result in a 
fundamental alteration in the nature of a program or activity or in 
undue financial and administrative burdens. Nothing in ESSA or these 
regulations modifies those independent and separate obligations. 
Compliance with the ESEA, as amended by the ESSA, does not ensure 
compliance with Title VI, Section 504 or title II.
---------------------------------------------------------------------------

    \24\ For more information on agencies' civil rights obligations 
to Limited English Proficient parents, see the Joint Dear Colleague 
Letter of Jan. 7, 2015, at Section J. (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf).
---------------------------------------------------------------------------

    Changes: None.
    Comments: While a small number of commenters supported the proposed 
accessibility requirements generally, several of the commenters 
expressed concern that the requirements do not sufficiently ensure that 
parents and other stakeholders are able to access the notices and 
documentation and information when it is posted on Web sites. Of the 
commenters expressing concern, several discussed the accessibility of 
parent notices provided on LEA Web sites, particularly for individuals 
with disabilities.
    Discussion: For a detailed discussion about accessibility of Web 
sites, please see the discussion below in Sec. Sec.  200.30 and 200.31.
    Changes: None.
    Comments: None.
    Discussion: Proposed Sec.  200.21(b)(3) required notice of a 
school's identification for comprehensive support and improvement in an 
alternative format accessible to a parent or guardian who is an 
individual with a disability, upon request. The term ``parent'' is 
defined in section 8101(38) of the ESEA, as amended by the ESSA. Under 
this definition, a ``parent'' includes a legal guardian or other person 
standing in loco parentis (such as a grandparent or stepparent with 
whom the child lives, or a person who is legally responsible for the 
child's welfare). Including the term ``guardian'' in Sec.  200.21(b)(3) 
is unnecessary and redundant.
    Changes: We have revised Sec.  200.21(b)(3) by removing the 
reference to a guardian.
    Comments: One commenter suggested that a review of notices be part 
of Federal and State monitoring of the requirements under title I of 
the ESEA, as amended by the ESSA.
    Discussion: The Department appreciates and will take this comment 
into consideration when developing plans for monitoring State and local 
accountability systems under the ESEA, as amended by the ESSA.
    Changes: None.
Needs Assessment: Comprehensive Support and Improvement
    Comments: Many commenters expressed general support for the 
proposed regulations in Sec.  200.21(c) requiring that, for each 
identified school, an LEA conducts a needs assessment in partnership 
with stakeholders (including principals and other school leaders, 
teachers, and parents). Many of these commenters suggested the 
regulations would be

[[Page 86148]]

strengthened by ensuring LEAs partner with a broader array of 
stakeholder groups, such as: Students, public health and health care 
professionals, community-based organizations, faith-based 
organizations, local government, institutions of higher education, 
businesses, and intermediary organizations. Some suggested the 
stakeholders engaged in this endeavor also include specific types of 
teachers and leaders, such as childhood educators and leaders working 
with children prior to school entry, career and technical educators, 
and specialized instructional support personnel. Several commenters 
expressed concern about the opportunity for limited English proficient 
families to fully participate in the needs assessment; one of these 
commenters recommended that the regulations require LEAs to provide 
interpretation services in order for parents to have a meaningful 
opportunity to participate in the process.
    Discussion: We appreciate the support from commenters for the 
proposed needs assessment requirements. The regulations require LEAs to 
partner with the same stakeholders with whom they are required to 
partner for purposes of developing the comprehensive support and 
improvement plan when they conduct the needs assessment that will 
inform that plan--principals and other school leaders, teachers, and 
parents. Although we encourage LEAs to partner with a broad range of 
stakeholders when developing and implementing a robust needs 
assessment, we believe LEAS should have discretion regarding the 
inclusion of additional groups or individuals in this work. LEAs must 
provide language assistance, consistent with their obligations under 
title VI, in order for limited English proficient families to 
participate meaningfully in the needs assessment.
    Changes: None.
    Comments: Some commenters suggested that a comprehensive needs 
assessment examine other measures in addition to those described in 
Sec.  200.21(c)(1)-(c)(4). For instance, many commenters recommended 
requiring the needs assessment to include measures of school climate 
(e.g., chronic absenteeism; suspension; bullying and harassment). One 
commenter suggested the needs assessment also include the school's 
existing interventions, including how they are being implemented and 
their effectiveness. Several commenters suggested changes specific to 
Sec.  200.21(c)(4) regarding the optional examination of the school's 
performance on additional, locally selected indicators. One such 
commenter suggested adding a requirement that locally selected 
indicators be supported, to the extent practicable, by the strongest 
evidence that is available and appropriate to the identified school. 
One commenter recommended that States be given discretion to specify 
which additional local indicators should be included in the needs 
assessment in order promote uniform requirements for needs assessments 
used by LEAs. Finally, one commenter stated that the Department does 
not have the authority to specify the minimum elements of a needs 
assessment.
    Discussion: The Department agrees with the commenters who indicated 
that the regulations should require LEAs, in partnership with 
stakeholders, to examine additional measures in a needs assessment. The 
needs assessment should examine the school's unmet needs, including the 
needs of students; school leadership and instructional staff; the 
quality of the instructional program; family and community involvement; 
school climate; and distribution of resources, including results of the 
resource inequity review. We believe these additions allow for the 
needs assessment to include measures of school climate and the school's 
existing interventions, as recommended by commenters.
    We disagree, however, with commenters' suggested revisions 
regarding the optional use of a school's performance on additional, 
locally selected indictors. Section 200.21(c)(4) allows, at the LEA's 
discretion, examination of an identified school's performance on 
additional, locally selected measures that are not included in the 
State's system of annual meaningful differentiation and that affect 
school outcomes in the school. We do not want to reduce local 
discretion on these measures for use in the needs assessment by adding 
specific requirements in the areas suggested by the commenters. 
Consequently, we decline to regulate further in this area.
    We also disagree with commenters who indicated that the Department 
lacks authority to specify the minimum requirements of the needs 
assessment. We believe these requirements are necessary to reasonably 
ensure that the needs assessment is meaningful and results in the 
development of a support and improvement plan that meets all 
requirements for such plans and will ultimately meet the statutory goal 
of improving student achievement and school success and closing 
academic achievement gaps. Accordingly, the regulation constitutes a 
proper exercise of the Department's rulemaking authority under GEPA, 
the DEOA, and section 1601(a) of the ESEA and falls squarely within the 
scope of section 1111(d), consistent with section 1111(e) (see further 
discussion under the heading Cross-Cutting Issues).
    Changes: We have revised Sec.  200.21(c) to require the needs 
assessment to include an examination of the school's unmet needs, 
including the unmet needs of students; school leadership and 
instructional staff; the quality of the instructional program; family 
and community involvement; school climate; and distribution of 
resources, including results of the resource inequity review. We have 
also renumbered the paragraphs in this subsection to accommodate the 
substantive revision.
    Comments: One commenter suggested adding a needs assessment 
requirement for targeted support and improvement schools that would 
include an assessment of school climate and safety.
    Discussion: The statute does not require a school identified for 
targeted support and improvement to conduct a needs assessment, but we 
encourage LEAs to consider conducting a needs assessment for such 
schools in order to develop an effective support and improvement plan 
tailored to local needs.
    Changes: None.
    Comments: None.
    Discussion: In proposed Sec.  200.21(c)(4), the needs assessment 
may examine, at the LEA's discretion, the school's performance on 
additional, locally selected indicators that are not included in the 
State's system of annual meaningful differentiation under Sec.  200.18 
and that affect student outcomes in the identified school. In order to 
clarify that the term ``locally selected indictors'' is separate and 
apart from the accountability indicators described in Sec.  200.14, we 
have changed the term to ``locally selected measures.''
    Changes: We have revised Sec.  200.21(c)(5), as renumbered, to say 
that an LEA may examine locally selected measures.
Comprehensive and Targeted Support and Improvement Plans: In General
    Comments: One commenter claimed that the Department does not have 
the authority to promulgate regulations that specify the minimum 
elements of comprehensive support and improvement support plans.
    Discussion: The regulations clarify and provide additional detail 
regarding how an LEA must comply with the requirements in section 
1111(d)(1)(B)(i)-(iv) of the ESEA, as amended by the ESSA, which 
establish

[[Page 86149]]

the basic elements of a comprehensive support and improvement plan. We 
believe these regulatory provisions are necessary to reasonably ensure 
that each comprehensive support and improvement plan meets the 
statutory requirements for such plans and ultimately meets the 
statutory goal of improving student achievement and school success and 
closing educational achievement gaps and therefore fall squarely within 
the scope of title I, part A of the statute. Moreover, the regulations 
ensure compliance with these key statutory provisions while maintaining 
significant flexibility for LEAs by, for instance, offering examples of 
evidence-based interventions an LEA might implement but leaving the 
selection of appropriate interventions to LEAs. Accordingly, the 
regulation constitutes a proper exercise of the Department's rulemaking 
authority under GEPA, the DEOA, and section 1601(a) of the ESEA and 
does not violate section 1111(e) (see further discussion under the 
heading Cross-Cutting Issues).
    Changes: None.
    Comments: One commenter suggested that the regulations clarify that 
States and districts can implement comprehensive support and 
improvement plans that address not only a school in need of 
comprehensive support and improvement but also the schools that feed 
students into that school.
    Discussion: While Sec.  200.21(d) requires that each LEA develop 
and implement a comprehensive support and improvement plan only for 
each identified school, an LEA may choose to consider supporting 
schools that feed into identified schools. Given this existing 
flexibility, we do not believe further regulation is necessary.
    Changes: None.
    Comments: A few commenters suggested requiring a comprehensive 
support and improvement plan to address how the LEA will build 
sufficient teacher and leader capacity to effectively implement 
interventions.
    Discussion: We appreciate the intentions of the commenters in 
recommending changes to support teachers and leaders in their 
implementation of comprehensive support and improvement plans but 
believe that further requirements in this area would not be consistent 
with the significant discretion afforded to schools by the ESEA, as 
amended by the ESSA, in the development and implementation of such 
plans.
    Changes: None.
    Comments: One commenter suggested adding new requirements for 
comprehensive support and improvement plans regarding the effective 
implementation of evidence-based interventions, while another commenter 
suggested recommended schools share data on the implementation of 
selected interventions with LEAs to support an evaluation of the 
intervention's impact.
    Discussion: We believe Sec.  200.21(d)-(f) already provides for a 
continuous improvement process that would support the effective 
implementation of interventions selected as part of a comprehensive 
support and improvement plan, including stakeholder participation, 
State monitoring of plan implementation, and more rigorous 
interventions and State support if an identified school does not meet 
exit criteria.
    Changes: None.
    Comments: One commenter suggested strengthening the requirements 
for monitoring schools identified for targeted improvement and support 
by revising Sec.  200.22(c) so that targeted support and improvement 
plans include, at a minimum, annual performance and growth benchmarks. 
The plan should also require a demonstration of sustained improvement 
against benchmark goals over at least two years before a school is 
exited from targeted support and improvement.
    Discussion: We believe Sec. Sec.  200.22(c)-(e) already require a 
meaningful continuous improvement process for schools implementing 
targeted support and improvement plans, and decline to regulate further 
in this area.
    Changes: None.
    Comments: Several commenters suggested that the targeted support 
and improvement plans required in Sec.  200.22(c) should include 
interventions designed for the specific subgroups of students 
identified as consistently underperforming rather than for all of the 
lowest-performing students. One commenter asserted that if a targeted 
support and improvement school has both consistently underperforming 
and low-performing subgroups, the students in these groups should be 
considered the lowest-performing students to whom interventions should 
be tailored.
    Discussion: We appreciate the comments suggesting that the 
Department require targeted support and improvement plans to focus on 
interventions tailored to specific subgroups. We decline to make this 
change, however, in order to maintain consistency between these 
regulations and the applicable non-discrimination legal requirements. 
To that end, we are clarifying in Sec.  200.22(c)(7) that the resource 
inequity review required for a school with low-performing subgroups 
must identify and address resource inequities, but not the effects of 
any identified inequities on the low-performing subgroups.
    Changes: We have revised Sec.  200.22(c)(7) to eliminate the 
requirement that the resource inequity review address the effects of 
identified inequities on each low-performing subgroup in the school.
    Comments: Several commenters suggested revising proposed Sec.  
200.22(c)(3)(ii) regarding the school's performance on additional, 
locally selected indicators that are not included in the State's system 
of annual meaningful differentiation under Sec.  200.18 and that affect 
student outcomes in the identified school. Recommended changes include 
requiring that, to extent practicable, locally selected indicators be 
supported by the strongest available evidence, distinguish between 
schools, predict performance, and are amenable to intervention.
    Discussion: We appreciate the intentions of the commenters in 
recommending changes designed to strengthen the impact of locally 
selected measures described in Sec.  200.22(c)(3)(ii), but believe that 
further requirements in this area would not be consistent with the 
significant discretion afforded to schools by the ESEA, as amended by 
the ESSA, in the development and implementation of targeted support and 
improvement plans.
    Changes: None.
    Comments: One commenter suggested adding to Sec.  200.22(c)(3) a 
new requirement to consider the implementation and effectiveness of 
existing interventions when developing a targeted support and 
improvement plan.
    Discussion: We appreciate the intention of the commenter in 
recommending changes designed to strengthen targeted support and 
improvement plans, but believe that further requirements in this area 
would not be consistent with the significant discretion afforded to 
schools by the ESEA, as amended by the ESSA, in the development and 
implementation of targeted support and improvement plans.
    Changes: None.
Stakeholder Engagement: Comprehensive and Targeted Support and 
Improvement Plans
    Comments: Many commenters expressed support for the required 
involvement of key stakeholders--including principals and other school

[[Page 86150]]

leaders, teachers, and parents--in the development and implementation 
of comprehensive and targeted support and improvement plans, but 
recommended the addition of a wide range of other specified 
stakeholders in the final regulation, such as school psychologists, 
students, and community-based organizations. In addition, one commenter 
recommended the addition of language requiring school districts subject 
to section 8538 of the ESEA to consult with tribal representatives 
before taking action under proposed Sec. Sec.  200.21 and 200.22 (as 
well as under proposed Sec. Sec.  200.15(c), 200.19, and 200.24).
    Discussion: We appreciate the support for the proposed regulations 
regarding stakeholder engagement in plan development and 
implementation. We emphasize that the list of stakeholders specified in 
the regulations--which mirrors the list provided in section 1111(d) of 
the ESEA, as amended by the ESSA--represents the minimum requirements 
for the stakeholders who should be engaged in plan development and 
implementation, and we encourage LEAs to include additional 
stakeholders as appropriate. We are, however, revising the final 
regulations in Sec.  200.21(d)(1) to encourage the inclusion of 
students, as appropriate, in the development of school improvement 
plans. While parents must be included in the development of the plans 
and are effective advocates on behalf of their children, we believe 
that directly involving students in developing school improvement 
plans, particularly in the case of older students, could ensure that a 
school's plan represents the perspectives of those who will be most 
directly impacted by its implementation. We are also making this 
revision to similar provisions in Sec. Sec.  200.15(c)(1)(i) and 
200.22(c)(1).
    We also agree that the tribal consultation requirement in section 
8538 of the ESEA, which requires certain school districts to consult 
with tribal representatives before submitting a plan or application 
under ESEA-covered programs, applies to comprehensive support and 
improvement plans under Sec.  200.21(d). We are therefore adding 
language to Sec.  200.21(d)(1) to specify that, for those affected 
LEAs, the stakeholders with whom the LEA works to develop the plan must 
include Indian tribes.
    The requirements of section 8538 do not apply to the needs 
assessments under Sec.  200.21(c) because there is no LEA plan or 
application that must be submitted. However, because the needs 
assessment is an important part of developing a comprehensive support 
and improvement plan, we encourage affected LEAs to involve local 
tribes in the needs assessment process. The tribal consultation 
requirement does not apply to the other provisions requested by the 
commenter, either because the regulatory requirements do not apply to 
LEAs (proposed Sec.  200.19 contains State requirements, not LEA plan 
requirements; proposed Sec. Sec.  200.15(c) and 200.22 apply to school-
level rather than LEA-level plans) or because the LEA application 
requirement is not for a covered program (proposed Sec.  200.24 
contains application requirements for school improvement funds under 
section 1003(a) of the ESEA, which is not a covered program).
    Changes: We have revised Sec.  200.21(d)(1) to include Indian 
tribes as a stakeholder for LEAs affected by section 8535 of the ESSA, 
as amended by the ESSA, and to include students, as appropriate. We 
have also revised Sec. Sec.  200.15(c)(1)(i) and 200.22(c)(1) to 
include students, as appropriate, in the development of school 
improvement plans related to low participation rates and to 
identification for targeted support and improvement.
    Comments: Comprehensive and targeted support and improvement plans 
(as described in Sec. Sec.  200.21(d) and 200.21(c), respectively) must 
be developed in partnership with stakeholders. Several commenters 
suggested the regulations clarify what is meant by the term 
``partnership,'' including by requiring shared decision-making with 
families (including training for parents and family members and 
specific provisions ensuring the meaningful inclusion of English 
learner families), sustained collaboration with equitable participation 
by diverse stakeholders, the integration of such partnerships with LEA 
and school parent and family engagement policies, and participation in 
the plan's monitoring and refinement cycle. One commenter also 
requested that the Department urge LEAs to work with stakeholders to 
determine whether changes are needed in pre-existing plans that may 
have been created without stakeholder engagement.
    Discussion: We appreciate the commenters' suggestions to further 
define how comprehensive and targeted support and improvement plans are 
developed and implemented in partnership with stakeholders, but we 
believe the requirements in Sec. Sec.  200.21(d)(1) and 200.22(c)(1) 
largely address the concerns and suggestions made by commenters on this 
matter.
    Changes: None.
    Comments: None.
    Discussion: Proposed Sec. Sec.  200.21(d) and 200.22(c) stated 
that, in developing comprehensive support and improvement plans, each 
LEA must describe in the plan how early stakeholder input was solicited 
and taken into account in the development of the plan, including the 
changes made as a result of such input. It is possible that no changes 
are necessary as a result of that input. Therefore, for the sake of 
clarity, we are revising the requirement to refer to ``any'' changes 
made as a result of input.
    Changes: We have revised Sec. Sec.  200.21(d)(1)(i) and 
200.22(c)(1)(i) to say ``any changes'' rather than ``the changes made 
as a result of such input.''
Evidence-Based Interventions: Comprehensive and Targeted Support and 
Improvement Plans
    Comments: Many commenters supported the specific examples of 
interventions cited in Sec.  200.21(d)(3) or suggested adding a wide 
range of other interventions to the final regulations. Some of these 
suggestions were similar to interventions already on the list, such as: 
Partnering with teacher preparation providers to implement year-long, 
clinically rich preparation programs that incorporate residents fully 
into instructional and school improvement efforts; expanded learning 
time and afterschool programs; and increased access to high-quality, 
developmentally-appropriate early education. Other commenters suggested 
additional examples not part of the current list, such as: Culturally 
responsive modifications to school interventions for underserved 
students; strategies to increase family and community engagement; and 
innovative instructional models that incorporate high-quality career 
technical education. Several commenters also recommended clarifying 
certain aspects of the interventions on the proposed list or revising 
them to reflect additional requirements or strategies.
    Other commenters opposed the inclusion of certain interventions on 
the list, citing concerns about the research base and/or effectiveness 
of the examples on the list, whether they would necessarily be 
appropriate in all local contexts, and whether the appearance of an 
``approved'' list in the regulations is consistent with local 
discretion to select appropriate interventions responding to local 
needs. One commenter recommended striking the list of examples in favor 
of simply requiring that interventions meet the definition of 
``evidence-based'' under section 8101(21) of the ESEA, as amended by 
the ESSA, or revising the

[[Page 86151]]

list to include only those interventions supported by strong, moderate, 
or promising evidence, since those three levels are required for any 
improvement plans funded by the school improvement funds authorized by 
Section 1003 of ESSA.
    Discussion: The list of examples in Sec.  200.21(d)(3) is intended 
merely to illustrate the types of interventions an LEA may choose to 
consider when developing a comprehensive support and improvement plan, 
and we recognize that there are many other interventions that an LEA 
could select in response to the specific needs of a particular school 
and community. The options available to LEAs include any of the 
activities and approaches recommended by the commenters, as long as 
they meet the requirements of Sec.  200.21(d)(3). For these reasons, we 
decline to add or remove any interventions to the non-exhaustive list, 
though we are making clarifications to several of the interventions 
currently on the list.
    Changes: We have revised the final regulations to clarify several 
of the examples of interventions in Sec.  200.21(d)(3). For one of 
these interventions, strategies designed to increase diversity by 
attracting and retaining students from varying socioeconomic 
backgrounds, we added students from varying racial and ethnic 
backgrounds. In the strategy to replace school leadership, the example 
now also includes identifying a new principal who is trained for or has 
a record of success in low-performing schools. We clarified the 
language regarding the revoking or non-renewing a public charter 
school's charter by adding language about public charter schools 
working in coordination with the applicable authorized public 
chartering agency to revoke or non-renew a school's charter and 
ensuring actions are consistent with State charter law and the school's 
charter.
    Comments: One commenter recommended including in Sec.  200.22(c) a 
examples of interventions for targeted support and improvement similar 
to that proposed in Sec.  200.21(d)(3) and including in that list: (1) 
Increasing access to effective general and special education teachers 
and specialized instructional support personnel or adopting incentives 
to recruit and retain effective general and special education teachers 
and specialized instructional support personnel; and, (2) adopting the 
use of multi-tiered systems of support to address academic and 
behavioral deficits, including the use of positive behavioral 
interventions and supports.
    Discussion: The examples of interventions listed in Sec.  
200.21(d)(3) are intended, in part, to illustrate the types of broad, 
comprehensive reforms that address the needs of an entire school, and 
not the narrower, more tailored interventions generally appropriate for 
schools identified for targeted support and improvement. Given the 
large number of differentiated strategies that may be used in schools 
identified for targeted support and improvement, depending on the 
specific needs and circumstances of the lowest-performing students in 
such schools, we do not believe it would be helpful to create a similar 
illustrative list for such schools in the final regulations.
    Changes: None.
    Comments: Several commenters suggested adjustments to the proposed 
requirement in Sec.  200.21(d)(3) and 200.22(c)(4) that comprehensive 
and targeted improvement and support plans include ``one or more'' 
interventions to improve student outcomes in the school that meet the 
definition of evidence-based under section 8101(21) of the ESEA, as 
amended by the ESSA. Some believe that considering the multitude of 
issues facing identified schools, a single intervention is insufficient 
to address the root cause of the overall low performance of the school. 
Several commenters suggested requiring more than one intervention, such 
as requiring two or more interventions that are evidence-based; two or 
more interventions for each subgroup identified; and multiple evidence-
based interventions that directly and comprehensively address the 
particular root causes of the school's low performance, which may 
include interventions that vary by academic subject area or meet the 
differing needs of students within a single subgroup.
    Discussion: While we believe that the commenters have identified 
important issues for LEAs and schools to consider in developing their 
improvement plans, we do not believe it is either appropriate or 
consistent with local discretion under the ESEA, as amended by the 
ESSA, to include additional requirements around the use of evidence-
based interventions in the final regulations.
    Changes: None.
    Comments: One commenter suggested clarifying the term 
``intervention'' in Sec.  200.22(c)(4) by adding regulatory language 
that an intervention may include activities, strategies, programs, or 
practices.
    Discussion: We agree that an intervention may include activities, 
strategies, programs, and practices, but decline to define the term 
further in the final regulation. However, we have provided further 
guidance around the use of evidence-based interventions in non-
regulatory guidance.\25\
---------------------------------------------------------------------------

    \25\ See: http://www2.ed.gov/policy/elsec/leg/essa/guidanceuseseinvestment.pdf. Non-Regulatory Guidance: Using Evidence 
to Strengthen Education Investments.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter recommended requiring that the intervention 
or interventions chosen for students instructed primarily through a 
Native American language that are included in comprehensive support and 
improvement plans are provided through the Native American language of 
instruction and do not limit the preservation or use of Native American 
languages.
    Discussion: Comprehensive and targeted support and improvement 
plans are developed in partnership with school leaders, teachers, and 
parents, and we encourage stakeholders and LEAs to consider the unique 
needs of students in identified schools when choosing appropriate 
interventions. However, requiring that supports be provided to students 
in a particular language is beyond the scope of these regulatory 
provisions, which address support and improvement to a school in 
general (see examples in Sec.  200.21(d)(3)), rather than to students 
individually.
    Changes: None.
    Comments: Many commenters expressed general support for the 
proposed requirements in Sec. Sec.  200.21(d)(3)(i)-(iv) and 
200.22(c)(4)(i)-(iv) regarding the selection of evidence-based 
interventions in comprehensive and targeted support and improvement 
plans. Some of these commenters also recommended a wide range of 
specific changes to these provisions, including, for example, 
additional methodological requirements for selecting and using 
evidence-based interventions, the use of State-established evidence-
based interventions or a State-approved list of evidence-based 
interventions, ensuring that selected interventions respond to the 
needs assessment, strengthening local capacity to identify and 
implement evidence-based interventions, building evidence through 
evaluation of selected interventions, and justifying the use of non-
evidence-based interventions. One commenter suggested changing the 
provisions to require that interventions maintain access to well-
rounded education for all students, including access to, and 
participation in, music and the arts as well as other well-rounded 
education subjects supported by the ESEA, as amended by the ESSA.

[[Page 86152]]

Another commenter recommended that the Department, with assistance from 
the Institute of Education Sciences, create a compendium of Federally-
supported rigorous research on effectiveness of interventions.
    Some commenters opposed the proposed requirements in Sec.  
200.21(d)(3)(i)-(iv) and Sec.  200.22(c)(4)(i)-(iv) regarding the 
selection of evidence-based interventions, asserting that these 
requirements inappropriately exceed those of the ESEA, as amended by 
the ESSA. One commenter stated that many districts do not have the 
capability to meet these requirements and may have to rely on costly 
external consultants for this purpose. This commenter also noted that 
the highest three tiers of evidence in the evidence-based definition 
are required only for interventions funded with State-awarded school 
improvement grants under section 1003 of the ESEA, as amended by the 
ESSA.
    Discussion: We appreciate the support of some commenters for the 
regulations regarding evidence-based interventions. While we appreciate 
the suggested revisions to the language in Sec. Sec.  200.21(d)(3) and 
200.22(c)(4), the Department believes, with one exception, that the 
current language is clear and declines to amend the regulations. 
Specifically, we are revising the provisions in proposed Sec. Sec.  
200.21(d)(3)(iv) and 200.22(c)(4)(iii) that stated that an intervention 
may be selected from a State-approved list of interventions consistent 
with Sec.  200.23(c)(2) to more clearly articulate these optional State 
authorities. Specifically, we are revising final Sec. Sec.  
200.22(d)(3)(iv) and 200.22(c)(3)(iv) so that it pertains only to 
``exhaustive or non-exhaustive'' lists of evidence-based interventions 
that may be established by the State and so that it references the 
optional State authority in Sec.  200.23(c)(2). We are further 
clarifying that, in the case of a State choosing to establish an 
exhaustive list of evidence-based interventions under Sec.  
200.23(c)(2), the evidence-based interventions in the support and 
improvement plan must be selected from that list, while in the case of 
a State opting to establish a non-exhaustive list under Sec.  
200.23(c)(2), the evidence-based interventions may be selected from 
that list. We are also adding Sec.  200.22(d)(3)(v) as a separate 
provision to clarify that the evidence-based intervention selected in a 
comprehensive support and improvement plan may be one that is 
determined by the State, consistent with State law, as described in 
section 1111(d)(1)(3)(B)(ii) of the ESEA, as amended by the ESSA, and 
Sec.  200.23(c)(3). We believe these revisions help clarify how a State 
may utilize the authorities described in Sec.  200.23(c)(2)-(3), and 
the distinctions between them. These revisions in no way alter an LEA 
or school's discretion to choose an evidence-based intervention from 
those included on a State-established list, exhaustive or otherwise.
    We disagree with commenters who indicated that Sec.  200.21(d)(3) 
exceeds the Department's rulemaking authority. These requirements 
clarify how an LEA is to comply with the new and complex statutory 
requirement to select and implement evidence-based interventions in 
schools identified for comprehensive or targeted support and 
improvement; without such clarification, an LEA might have difficulty 
meeting this requirement. Moreover, these clarifications of the 
statutory requirements are necessary to reasonably ensure that the 
selected interventions will advance the statutory goals of improving 
student academic achievement and school success and closing achievement 
gaps and therefore fall squarely within the scope of section 1111 of 
the ESEA, as amended by the ESSA, consistent with section 1111(e). 
Accordingly, these requirements constitute an appropriate exercise of 
the Department's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA.
    Changes: We have revised Sec. Sec.  200.21(d)(3)(iv) and 
200.22(c)(4)(iv) to more clearly articulate the distinctions between 
the optional State authorities for lists of State-approved 
interventions and State-determined interventions, as described in Sec.  
200.23(c)(2)-(3), and their impact on the evidence-based interventions 
used in school support and improvement plans. Specifically, in the case 
of an exhaustive list of interventions established by the State 
consistent with Sec.  200.23(c)(2), the intervention must be selected 
from that list, while in the case of a State establishing a non-
exhaustive list, the intervention may be selected from that list. In 
addition, for comprehensive support and improvement plans, Sec.  
200.21(d)(3)(v) clarifies that the intervention may be one that is 
determined by the State, consistent with State law, as described in 
section 1111(d)(1)(3)(B)(ii) of the ESEA, as amended by the ESSA, and 
Sec.  200.23(c)(3).
Equity and Resource Allocation: Comprehensive and Targeted Support and 
Improvement Plans
    Comments: A number of commenters expressed support for Sec.  
200.21(d)(4) and Sec.  200.22(c)(7), which require comprehensive 
support and improvement plans and targeted support and improvement 
plans for schools with low-performing subgroups that also must receive 
additional targeted support to identify and address resource inequities 
by reviewing certain LEA- and school-level resources. Other commenters 
requested that the Department eliminate these requirements or that it 
simply provide illustrative examples of resources that LEAs or schools 
might choose to review. Some commenters also suggested that such 
reviews might not be permissible under State law or questioned the 
Department's authority to require the review of any specific resources. 
One commenter specifically stated that the requirements conflicted with 
section 8527 of the ESEA, as amended by the ESSA.
    Discussion: The Department appreciates the support for the resource 
review provisions in the proposed regulations. We believe that 
specifying certain types of resources for review is essential for 
ensuring that the reviews are meaningful and that they enable LEAs and 
schools to meet the statutory requirements for comprehensive support 
and improvement plans and targeted support and improvement plans for 
schools with low-performing subgroups schools that also must receive 
additional targeted support to identify and address resource inequities 
(ESEA section 1111(d)(1)(B)(iv), 1111(d)(2)(C)). We also believe that 
reviewing the particular resources in Sec. Sec.  200.21(d)(4) and 
200.22(c)(7) falls squarely within the scope of section 1111(d) of the 
ESEA, as amended by the ESSA, because it is necessary to the 
development of support and improvement plans that advance the statutory 
goals of improving student academic achievement and school success and 
closing educational achievement gaps. Further, the regulations ensure 
that these statutory requirements and purposes are met while minimizing 
burden on LEAs and schools by focusing on key data that States already 
will be collecting and reporting under the ESEA, as amended by the 
ESSA. Accordingly, we believe Sec. Sec.  200.21(d)(4) and 200.22(c)(7) 
are a proper exercise of the Department's rulemaking authority under 
GEPA, the DEOA, and section 1601(a) of the ESEA,

[[Page 86153]]

as amended by the ESSA, and do not violate section 1111(e).
    Further, we disagree that the requirement to identify and address 
resource inequities by reviewing certain resources violates section 
8527 of the ESEA, as amended by the ESSA. That provision states that 
nothing in the ESEA authorizes an officer or employee of the Federal 
Government ``to mandate, direct, or control'' a State, LEA, or school's 
allocation of State or local resources. As the regulations require the 
review of certain resources in order to identify and address resource 
inequities but do not require that such inequities be addressed in any 
particular way, they in no way ``mandate, direct, or control'' the 
allocation of State or local resources.
    Changes: None.
    Comments: A number of commenters recommended changes to the list of 
resources reviewed under Sec. Sec.  200.21(d)(4)(i) and 
200.22(c)(7)(i), including changes in required and optional elements of 
an LEA- or school-level resource review. Suggested elements included, 
for example, access to technology, music and art, and specialized 
instructional support personnel. Two commenters requested that we re-
designate the examples in proposed Sec. Sec.  200.21(d)(4)(ii)(A)-(C) 
and 200.22(c)(7)(ii)(A)-(C)--access advanced coursework, preschool 
programs, and instructional materials and technology--as required 
elements of resource reviews. One commenter also suggested adding to 
the list of required elements data that a State is required to report 
under section 1111(h)(1)(C)(viii) of the ESEA, as amended by the ESSA, 
which includes measures of school quality such as rates of suspensions 
and the number and percentage of students enrolled in preschool 
programs and accelerated coursework.
    Discussion: We recognize that, as suggested by commenters, there 
are numerous examples of resources that contribute to positive 
educational outcomes that could be included in either a required or 
optional list in Sec. Sec.  200.21(d)(4) and 200.22(c)(7), and we note 
that the final regulations would permit an LEA or school to add nearly 
any educational resource to its review that it deems important for 
supporting the effective implementation of school improvement plans.
    We also believe, however, that the final regulations are more 
likely to promote meaningful resource reviews by focusing on a discrete 
list of required elements while continuing to reserve significant 
discretion to LEAs and schools in the conduct of such reviews. For this 
reason, we are revising the final regulations to make access to 
advanced coursework as well as access to both preschool and full-day 
kindergarten required elements of resource reviews. We also are adding 
as a required element access to specialized instructional support 
personnel, as defined in section 8101(47) of the ESEA, as amended by 
the ESSA. Specialized instructional support personnel such as school 
counselors are an important resource for creating and maintaining a 
safe and positive school climate and it is essential that students in 
all schools, but particularly low-performing schools, have access to 
those resources.
    Finally, we decline to add school climate or suspension rates to 
the list of resources for review. Although these are important aspects 
of a school that should be evaluated and analyzed, they are not 
resources that are allocated. We encourage an LEA conducting a needs 
assessment pursuant to Sec.  200.21(c) to examine a school's unmet 
needs with respect to school climate, including by reviewing data 
reported under section 1111(h)(1)(C)(viii)(I) of the ESEA, as amended 
by the ESSA, on rates of in-school suspensions, expulsions, school-
related arrests, referrals to law enforcement, chronic absenteeism, and 
incidences of violence, including bullying and harassment.
    Changes: We have revised the language in Sec. Sec.  200.21(d)(4)(i) 
and 200.22(c)(7)(i) to require that an LEA, or school, include as part 
of its resource inequity review, in addition to per-pupil-expenditures 
and access to ineffective teachers, access to full-day kindergarten 
programs and preschool programs (in the case of an elementary school) 
as reported annually consistent with section 1111(h)(1)(C)(viii) of the 
ESEA, as amended by the ESSA, advanced coursework, including 
accelerated coursework as reported annually consistent with section 
1111(h)(1)(C)(viii) of the ESEA, as amended by the ESSA, and 
specialized instructional support personnel, as defined in section 
8101(47) of the ESEA, as amended by the ESSA, including school 
counselors, school social workers, school psychologists, other 
qualified professional personnel, and school librarians. We have also 
made conforming changes to Sec.  200.21(d)(4)(ii) and Sec.  
200.22(c)(7)(ii).
    Comments: One commenter requested that the Department expand the 
resource inequity review requirements to apply to schools identified 
for targeted support and improvement due to one or more consistently 
underperforming subgroups.
    Discussion: The Department believes that requiring resource reviews 
for schools identified for targeted support and improvement would not 
be consistent with the ESEA, as amended by the ESSA; nevertheless, we 
strongly encourage those schools and their LEAs to include resource 
reviews as part of their targeted support and improvement plans.
    Changes: None.
    Comments: One commenter requested that the Department require that 
an LEA, or school, include, with respect to the required review in 
Sec. Sec.  200.21(d)(4)(i) and 200.22(c)(7)(i) of per-pupil-
expenditures and ineffective teachers, a review of budgeting and 
resource allocation.
    Discussion: The Department believes that requiring a review of LEA 
and school-level budgeting and resource allocation would be 
inconsistent with section 1111(d) of the ESEA, as amended by the ESSA, 
which specifies that resource reviews ``may include'' budgeting and 
resource allocation decisions.
    Changes: None.
    Comments: Several commenters supported the requirements in Sec.  
200.21(d)(4) and Sec.  200.22(c)(7) but noted concern about the 
elimination of the highly-qualified teacher requirements that existed 
under the ESEA, as amended by NCLB.
    Discussion: The ESSA eliminated the highly-qualified teacher 
requirements in NCLB, and we therefore decline to include them.
    Changes: None.
Timeline, Plan Approval, and Public Availability: Comprehensive and 
Targeted Support and Improvement Plans
    Comments: Many commenters supported local discretion to use the 
first year following identification for targeted or comprehensive 
support and improvement as a planning year, as described in Sec. Sec.  
200.21(d)(5) and 200.22(c)(5).
    Discussion: The Department appreciates the strong support for the 
allowance of a planning year; we agree that it will facilitate the 
development and implementation of targeted and comprehensive support 
and improvement plans consistent with the requirements of the ESEA, as 
amended by the ESSA. To further clarify that schools may begin 
implementation of targeted or comprehensive support and improvement 
plans during the planning year, we have made revisions to the proposed 
requirements in Sec. Sec.  200.21 and 200.22.
    Changes: We have revised the language in Sec. Sec.  200.21(d)(5) 
and 200.22(c)(5) to clarify that a school identified for comprehensive 
or targeted

[[Page 86154]]

support and improvement may begin implementation of its approved plan 
during the planning year, or, at the latest, the first full day of the 
school year following the school year for which the school was 
identified.
    Comments: One commenter suggested adding language that an LEA may 
identify a new principal, if applicable, during the planning year in 
order to encourage districts to thoughtfully plan for leadership 
transitions as early as possible.
    Discussion: We decline to require the identification of a new 
principal during the planning year, the timing of which we believe is a 
local decision.
    Changes: None.
    Comments: Several commenters supported requiring LEAs, consistent 
with Sec. Sec.  200.21(d)(6) and 200.22(d)(2), to make comprehensive 
and targeted support and improvement plans publicly available, 
including to parents consistent with the requirements for notice in 
Sec.  200.21(b). Other commenters recommended additional requirements, 
including making a hard copy available or providing online access to 
the documents at the school for parents who do not have a home 
computer.
    Discussion: We appreciate the support of commenters for our 
proposed regulations regarding the public availability, including to 
parents, of comprehensive and targeted support and improvement plans. 
We believe these requirements will ensure that plans are accessible to 
parents, including those with limited English proficiency needing 
language assistance. We encourage but do not require the plan be made 
available in a particular format (e.g., via hardcopy or online) unless 
that is necessary to meet the requirement for an alternative format 
requested by a parent who is an individual with a disability.
    Changes: None.
    Comments: Several commenters opposed the proposed language in Sec.  
200.21(d)(7) requiring school approval of comprehensive support and 
improvement plans because they believe that LEAs should retain final 
approval authority to ensure that all schools in the district are 
treated equally and that no school has veto power over an improvement 
plan.
    Discussion: The final regulations are consistent with section 
1111(d)(1)(B)(v) of the ESEA, as amended by the ESSA, which requires 
that a comprehensive support and improvement plan be approved by the 
school, LEA and SEA.
    Changes: None.
    Comments: Several commenters requested clarification regarding the 
requirements in Sec.  200.21(e)(1) regarding the State's 
responsibilities for comprehensive support and improvement plan 
approval and monitoring, with some commenters recommending defining the 
term ``periodically'' as it applies to review of plan implementation to 
mean at least annually. Similarly, several commenters requested 
clarification regarding the requirement in Sec.  200.22(d) regarding 
the LEA's responsibilities for plan approval, in particular what it 
means to review and approve a targeted support and improvement plan 
``in a timely manner.'' Other commenters stated that the review of 
improvement plans should include input from State Advisory Panels in 
special education.
    Discussion: We do not believe it is necessary to further define the 
terms ``in a timely manner'' or ``periodically'' in these regulations, 
as we believe both States and LEAs should have discretion, consistent 
with the ESEA, as amended by the ESSA, to develop timelines related the 
development and implementation of comprehensive and targeted support 
and improvement plans, respectively, that reflect their needs and 
circumstances. We also note that these timelines will naturally be 
driven, in part, by the implementation timelines specified in these 
final regulations (i.e., plans must be fully implemented no later than 
the first day of school in the year immediately following a planning 
year/the year for which identified).
    Changes: None.
Exit Criteria: Comprehensive Support and Improvement Plans
    Comments: Several commenters generally supported the requirements 
in Sec.  200.21(f) for exit criteria for schools implementing 
comprehensive support and improvement plans. Several other commenters, 
however, opposed the proposed regulations on exit criteria, contending 
that the Department does not have the authority to promulgate those 
regulations, that the regulation violates the provision in section 
1111(e)(1)(B)(iii)(VII) of the ESEA, as amended by the ESSA, which 
states that the Secretary may not prescribe exit criteria established 
by the State, and that the determination of appropriate exit criteria, 
as well as the actions that an LEA with a school that does not meet the 
exit criteria must take, should be determined by the State. More 
specifically, several commenters objected to the regulations on the 
basis that they would prevent a State from establishing exit criteria 
based on measures other than test scores or graduation rates. One 
commenter expressed concern that the exit criteria parameters in the 
proposed regulations were not sufficiently rigorous. Finally, a number 
of commenters requested that the Department remain silent on the State-
established timeline for exit criteria.
    Discussion: The Department appreciates the support for the 
requirements related to exit criteria. In response to the comments 
suggesting that the States should be permitted to determine exit 
criteria, the Department notes that the regulations in Sec.  200.21(f) 
allow a State to establish its own exit criteria, requiring only that 
those exit criteria fall within two parameters: (1) That they require 
improvements in student outcomes; and (2) that a school that meets the 
exit criteria no longer meets the criteria for identification as a 
comprehensive support and improvement school.
    Under these regulations, ``student outcomes'' are not limited to 
outcomes on statewide assessments. Accordingly, a State may establish 
exit criteria that are based on measures in addition to or other than 
test scores, such as, for example, improvements on any indicator in the 
accountability system, including a School Quality or Student Success 
indicator. States also have flexibility to determine what constitutes 
``improvement'' on an indicator, and the Department encourages States 
in establishing these parameters to consider whether a school has 
sustained improvements and is likely to not be re-identified. We also 
believe that the regulations strike the proper balance between setting 
safeguards to ensure meaningful exit criteria and providing each State 
with ample flexibility to establish the exit criteria most appropriate 
for its State context. Further, we believe the regulations are 
consistent with section 1111(e)(1)(B)(iii)(VII) of the ESEA, as amended 
by the ESSA, because they do not prescribe exit criteria. Rather, the 
regulations set broad parameters around exit criteria to ensure that 
the criteria are linked with improved schools as opposed to, for 
example, arbitrary measures unrelated to student outcomes. A State may 
establish whatever exit criteria it believes are appropriate within 
those parameters such as, for example, improved performance on the 
School Quality or Student Success indicator or improvements in other 
student outcomes, as required under section 1111(d)(3) of the ESEA, as 
amended by the ESSA. Additionally, we believe that the regulations fall 
within the scope of, and are necessary to ensure compliance with, the 
requirements in section 1111(d)(3)(A)(i) of the ESEA, which

[[Page 86155]]

requires exit criteria be designed to ensure continued progress to 
improve student academic achievement and school success in the State. 
As such, we believe these requirements constitute a proper exercise of 
the Department's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA, and do not violate section 1111(e) of the ESEA, as 
amended by the ESSA.
    Additionally, given the balance struck by the regulations, the 
Department declines to specify more rigorous parameters for exit 
criteria in the final regulations. Further, we note that the regulatory 
provision specifying that the State-determined timeline for meeting the 
exit criteria may not exceed four years merely restates the statutory 
provision in section 1111(d)(3)(A)(i)(I) of the ESEA, as amended by the 
ESSA.
    Changes: None.
    Comments: None.
    Discussion: We have determined that the regulations could provide 
greater clarity regarding how a State determines that a school no 
longer meets the criteria for identification under Sec.  200.19(a). 
Specifically, we believe that it is necessary to clarify that a State's 
exit criteria must ensure that a school no longer meets the specific 
criterion or criteria under which the school was identified, rather 
than all of the criteria under Sec.  200.19(a) (e.g., if a school was 
identified because it was among the lowest-performing five percent of 
title I schools in the State, the exit criteria need not require that 
the school improve its graduation rate).
    Changes: We have modified the language in Sec.  200.21(f)(1)(ii) to 
specify that a State's exit criteria must require that a school no 
longer meet the specific criteria under which the school was identified 
as a comprehensive support and improvement school.
    Comments: One commenter expressed support for the requirement, in 
Sec.  299.17(c)(2) of the proposed regulations, that a State make 
publicly available the exit criteria it establishes under Sec.  
200.21(f).
    Discussion: The Department appreciates the support for this 
requirement, and believes it would be helpful to further clarify this 
requirement by adding it to Sec.  200.21 in the final regulations; we 
believe a similar clarification is also helpful in Sec.  200.22(f)(1) 
with regard to title I schools with low-performing subgroups of 
students identified for targeted support and improvement.
    Changes: We have modified the language in Sec. Sec.  200.21(f)(1) 
and 200.22(f)(1) to reiterate the requirement in Sec.  299.17(c)(2) and 
(5) that a State must make publicly available its exit criteria for 
schools identified for comprehensive support and improvement and for 
schools with low-performing subgroups of students identified for 
targeted support and improvement.
    Comments: One commenter noted that the term ``exit criteria'' could 
be called ``success criteria'' instead.
    Discussion: We retain the proposed terminology in the final 
regulations for consistency with the ESEA, as amended by the ESSA, but 
note that a State may use whatever term it deems appropriate for its 
exit criteria as long as the criteria meet the requirements in Sec.  
200.21(f).
    Changes: None.
    Comments: One commenter asked for clarification on how the 
requirements in the regulations with respect to timeline for exiting 
interact with the timeline for schools currently implementing 
interventions under ESEA flexibility as well as what types of support 
and monitoring a State must provide to an LEA with a school that does 
not meet the exit criteria.
    Discussion: The Department agrees that clarification on the issues 
raised by the commenter would be helpful, but intends to address both 
issues in non-regulatory guidance rather than the final regulations.
    Changes: None.
    Comments: Several commenters requested that the Department 
eliminate the requirement that an LEA conduct a new needs assessment 
for a school implementing a comprehensive support and improvement plan 
that does not meet the exit criteria within the State-determined number 
of years. Those commenters claimed that the requirement is duplicative, 
burdensome, and inconsistent with the statute.
    Discussion: The Department believes that a new, high-quality needs 
assessment, conducted in partnership with stakeholders, is an essential 
foundation for the development and successful implementation of the 
amended comprehensive support and improvement plan required by Sec.  
200.21(f)(3). Additionally, the requirement is necessary to reasonably 
ensure compliance with sections 1111(d)(1)(B)(iii) and 1111(d)(3) of 
the ESEA, as amended by the ESSA, because an amended needs assessment 
is essential to identifying areas for which improvement is needed in a 
school that has failed, after a State-determined number of years, to 
meet the State-established exit criteria. For these reasons, we believe 
the regulation falls squarely within the scope of section 1111(d) of 
the ESEA, as amended by the ESSA, consistent with section 1111(e), and 
our rulemaking authority under GEPA, the DEOA, and section 1601(a) of 
the ESEA, as amended by the ESSA, and, thus, decline to eliminate this 
requirement.
    Changes: None.
    Comments: A number of commenters suggested changes to Sec.  
200.21(f)(3) with respect to the actions an LEA must take if a school 
identified for comprehensive support and improvement does not meet the 
exit criteria within a State-determined number of years. Specifically, 
these commenters requested clarification that the additional 
interventions that the LEA must implement in the school may replace or 
supplement the existing interventions and that the additional 
interventions must address the needs identified by the new needs 
assessment, regardless of the level of evidence supporting those 
interventions. Some of these commenters were concerned that the 
requirement in Sec.  200.21(f)(3)(iii)(B) appeared to require all of 
the additional interventions in the amended plan to be supported by 
strong or moderate evidence. Finally, one commenter suggested requiring 
annual State review of the implementation of the amended comprehensive 
support and improvement plan.
    Discussion: We agree with the suggestions to clarify that not all 
the additional interventions that an LEA implements as part of an 
amended comprehensive support and improvement plan for a school that 
fails to meet exit criteria must be evidence-based interventions 
supported by strong or moderate evidence and is revising the regulation 
to reflect this clarification. The Department believes that 
interventions with stronger evidence are more likely to lead to success 
and, therefore, will maintain the requirement that at least one of the 
interventions be supported by strong or moderate evidence. We further 
agree that an LEA may either replace or supplement existing 
interventions, as determined by the State, and that an LEA should, as 
part of its new needs assessment, carefully review whether the existing 
interventions have been successful at improving the achievement of its 
students, but believe the regulations already are clear on this point. 
Finally, the Department declines to amend the regulations to include 
annual State review of the implementation of amended comprehensive 
support and improvement plans because it believes that the need for 
additional monitoring and support for such schools is adequately 
addressed by the requirement in Sec.  200.21(f)(5)(ii).
    Changes: The Department has amended Sec.  200.21(f)(3)(iii)(B) to 
require

[[Page 86156]]

that the additional interventions that an LEA with a school identified 
for comprehensive support and improvement that does not meet exit 
criteria must implement include one or more evidence-based 
interventions that are supported by strong or moderate evidence, but 
clarify that the amended plan may also include other rigorous 
interventions that are not supported by strong or moderate evidence.
Exit Criteria: Targeted Support and Improvement Plans
    Comments: Several commenters supported generally the requirements 
in Sec.  200.22(e) for exit criteria, including one who specifically 
supported the requirement that an LEA make the exit criteria publicly 
available. Several other commenters asserted that the Department does 
not have authority to set parameters around exit criteria or that 
either the exit criteria or the actions required for a school that does 
not meet the exit criteria should be determined by the State or LEA.
    Discussion: The Department appreciates the support for the 
requirements related to exit criteria in the proposed regulations. We 
believe that these requirements fall squarely within the scope of, and 
are necessary to reasonably ensure compliance with the requirements in 
section 1111(d)(2)(B) of the ESEA, as amended by the ESSA, that schools 
identified for targeted support and improvement implement plans that 
improve student outcomes and that such plans result in additional 
action following unsuccessful implementation after a number of years. 
As such, we believe these requirements constitute a proper exercise of 
the Secretary's rulemaking authority under GEPA, the DEOA, and section 
1601(a) of the ESEA, as amended by the ESSA, and do not violate section 
1111(e) (see discussion of the Department's general rulemaking 
authority under the heading Cross-Cutting Issues). Further, the 
regulations reserve appropriate discretion for LEAs to determine their 
specific exit criteria for schools implementing targeted support and 
improvement plans.
    Changes: None.
    Comments: One commenter suggested requiring annual State review of 
the implementation of amended targeted support and improvement plans.
    Discussion: The Department believes that requiring annual State 
review of the implementation of amended targeted support and 
improvement plans would be inconsistent with the ESEA, as amended by 
the ESSA, which gives LEAs primary responsibility for ensuring the 
effective implementation of targeted support and improvement plans. We 
also believes that the requirement in Sec.  200.22(e)(2)(iii) that the 
LEA increase monitoring and support for school implementing amended 
targeted support and improvement plans partly addresses the commenter's 
concerns.
    Changes: None.
    Comments: A number of commenters recommended that the Department 
impose a maximum timeline for exit criteria for schools identified for 
targeted support and improvement due to one or more consistently 
underperforming subgroups. Two commenters suggested aligning the 
maximum timeline with the requirement that exit criteria for 
comprehensive support and improvement schools not exceed four years; 
another suggested requiring a cap of two years, noting that the exit 
criteria should be based on the school's progress against benchmark 
goals; and one commenter suggested that, if, after three years, a 
school has not met the exit criteria for targeted support and 
improvement, the State be required to identify it for comprehensive 
support and improvement.
    Discussion: The Department appreciates the recommendations of the 
commenters, each of which is aimed at ensuring that LEAs and States 
take meaningful action, over time, to improve outcomes for students in 
consistently underperforming subgroups. However, the Department 
believes that these recommendations generally are not consistent with 
the requirements of the ESEA, as amended by the ESSA, which reserve 
significant discretion to LEAs in the development and implementation of 
targeted support and improvement plans. The Department also believes 
that because the ESEA, as amended by the ESSA, specifies the types of 
schools that must be identified for comprehensive support and 
improvement, it would not be appropriate to expand this definition to 
include schools identified for targeted support and improvement due to 
one or more consistently underperforming subgroups that fail to meet 
exit criteria. For these reasons, we believe that the regulations 
strike the proper balance between establishing safeguards to ensure 
meaningful exit criteria and providing each LEA with flexibility to 
establish the exit criteria most appropriate for its specific context, 
as well as more rigorous consequences for failure to meet those 
criteria.
    Changes: None.
    Comments: A number of commenters recommended that the Department 
require that States, rather than LEAs, establish exit criteria or 
otherwise eliminate the LEA's control over the exit criteria for 
schools identified for targeted support and improvement based on one or 
more consistently underperforming subgroups. These commenters were 
concerned that the LEA-established exit criteria may conflict with 
State policies, including the State's criteria for identifying 
consistently underperforming subgroups, may be inconsistent across the 
State, and may create burden for LEAs.
    Discussion: The Department appreciates commenters' interest in 
having States establish exit criteria for this type of school. The 
regulation, however, is consistent with the statute, which specifically 
grants authority to establish exit criteria for these schools to LEAs 
(section 1111(d)(2)(B)(v) of the ESEA). We note that States have 
authority to issue rules, regulations, and policies related to title I 
of the ESEA, and may exercise that authority in accordance with the 
requirements in section 1603 of the statute. A State may use that 
authority to issue rules, regulations, or policies that establish 
parameters around LEA-established exit criteria.
    Changes: None.
    Comments: Several commenters recommended requiring a school 
identified for targeted support and improvement that does not meet its 
exit criteria to conduct a needs assessment.
    Discussion: While we encourage States and LEAs to require a needs 
assessment as a prerequisite for all school improvement plans--whether 
initial or amended--we decline to add such a requirement to the final 
regulations because the ESEA, as amended by the ESSA, requires such 
needs assessments only for schools identified for comprehensive support 
and improvement.
    Changes: None.
State Discretion for Certain High Schools
    Comments: Several commenters supported proposed Sec.  200.21(g)(1), 
under which a State may permit differentiated improvement activities as 
part of comprehensive support and improvement plan for certain high 
schools identified due to low graduation rates. A number of commenters 
recommended various clarifications, including specific terms used in 
the provision, such as ``differentiated improvement activities;'' the 
specific schools eligible for differentiated treatment; and the extent 
of the permitted differentiation, including examples of appropriate 
interventions.

[[Page 86157]]

Another commenter suggested that holding high schools serving 
significant populations of over-age and credit-deficient student 
accountable for meeting targets based on extended-time graduation rates 
would better serve these schools and their families than a different 
set of labels or interventions. One commenter recommended requiring 
States to provide a plan for how accountability will be maintained in 
these schools, including the calculation of extended-year adjusted 
cohort graduation rate for up to 7 years.
    Discussion: We appreciate the support of some commenters for 
proposed Sec.  200.21(g)(1) permitting differentiated activities in 
certain high schools identified for comprehensive support and 
improvement, and agree that additional clarity is needed regarding this 
flexibility. The intent of proposed Sec.  200.21(g)(1) was to permit 
States discretion, consistent with section 1111(d)(1)(C)(i) of the 
ESEA, as amended by the ESSA, to allow differentiated improvement 
strategies in its comprehensive support and improvement plans for high 
schools with low graduation rates that predominantly serve students (1) 
returning to education after having exited secondary school without a 
regular high school diploma, or (2) who, based on their grade or age, 
are significantly off track to accumulate sufficient academic credits 
to meet high school graduation requirements, and not to simply forego 
implementation of improvement activities or otherwise reduce 
accountability in such schools, as is allowed for small high schools 
under proposed Sec.  200.21(g)(2). We also note that LEAs may, and 
should, create differentiated improvement plans for such high schools 
identified for support and improvement that are based on the school's 
needs assessment and specifically designed to address identified needs. 
Other comments, such as concern about labels or recommendations for 
additional improvement plans, appear to overlook the fact that these 
schools are identified for comprehensive support and improvement and 
thus must develop and implement comprehensive support and improvement 
plans, though they may include differentiated improvement activities in 
such plans. We are revising Sec. Sec.  200.21(d) and (g) to reflect 
these clarifications.
    Changes: We have moved the language regarding differentiated 
improvement activities in any high school identified for comprehensive 
support and improvement due to a low graduation rate that predominantly 
serves students (1) returning to education after having exited 
secondary school without a regular high school diploma, or (2) who, 
based on their grade or age, are significantly off track to accumulate 
sufficient academic credits to meet high school graduation requirements 
from Sec.  200.21(g)(1) to 200.21(d)(3)(vi).
    Comments: Some commenters supported the provision in Sec.  
200.21(g)(2) allowing an SEA to exempt a high school that is identified 
for comprehensive support and improvement based on having a low 
graduation rate from implementing required improvement activities if it 
has a total enrollment of less than 100 students. Several commenters 
requested clarification about some of the terms in Sec.  200.21(g)(2), 
such as ``total enrollment'' and ``such a school''. A few commenters 
recommended requiring a justification for such exemptions in annual LEA 
report cards, while others called for notifying parents when identified 
schools do not implement improvement plans. Two commenters recommended 
that the Department clarify in guidance that these LEAs are still 
subject to all other reporting requirements. Other commenters expressed 
concern about permitting such exemptions for extended periods of time 
or stated that this flexibility is inappropriate for certain schools, 
such as schools that predominantly serve students with disabilities or 
schools serving students in prison or juvenile justice facilities.
    Discussion: We appreciate the support some commenters provided for 
State discretion for certain small high schools identified for 
comprehensive support and improvement due to low graduation rates. We 
agree that the regulations should be clarified to ensure that this 
flexibility is provided only for small schools (with fewer than 100 
students enrolled) that are identified for comprehensive support and 
improvement based on having a low graduation rate; small schools that 
are identified for other reasons must develop and implement a 
comprehensive support and improvement plan as required by the statute 
and regulations. However, we decline to include additional reporting 
and notice requirements in these final regulations, as the continued 
applicability of all reporting requirements in the statute and 
regulations will provide the transparency needed to promote 
accountability. We also believe that denying this flexibility to 
certain small schools, such as schools predominantly serving students 
with disabilities, would not be consistent with the ESEA, as amended by 
the ESSA, though we note that this flexibility may not be used to 
deprive these students of their rights under the IDEA, Section 504, and 
title II of the ADA.
    Changes: We have revised Sec.  200.21(g) to clarify that high 
schools identified for comprehensive support and improvement based on 
low graduation rate with a total enrollment of less than 100 students 
are the only high schools permitted to forgo implementation of 
improvement activities required by these regulations.
Public School Choice
    Comments: Several commenters support the requirements in Sec.  
200.21(h) regarding public school choice, while others asserted that 
this subsection is not consistent with section 1111(d)(1)(D) of the 
ESEA, as amended by the ESSA. One of these commenters objected to 
requiring school districts that that are operating under a Federal 
desegregation order and wish to offer public school choice consistent 
with Sec.  200.21(h) to obtain court approval for choice transfers, 
based on the belief that choice options should not interfere with the 
operation of desegregation plans. Another commenter objected to what 
the commenter appeared to believe is a requirement to offer public 
school choice, suggesting that such a requirement would negatively 
impact students that are homeless and/or transferring for a number of 
other reasons, including students that move mid-year and want to attend 
their new neighborhood school.
    Discussion: An LEA is required to ``obtain court approval'' for 
transfers if it is unable to implement the choice provisions consistent 
with the desegregation plan, or where the governing orders specifically 
require authorization from the court. The Department anticipates that 
courts and responsible agencies will recognize the benefits of allowing 
students to transfer from schools identified as needing improvement and 
will grant amendments to desegregation orders permitting such transfers 
where they would not impede desegregation. We disagree with the 
commenter that believes the provision would have a negative impact on 
mobile students. An LEA may, but is not required to provide students 
with the option to transfer to another public school that is not 
identified for comprehensive improvement and support, and no student 
would be required to seek or accept such a transfer.
    Changes: None.

[[Page 86158]]

Section 200.23 State Responsibilities To Support Continued Improvement

State Review of Available Resources
    Comments: Several commenters strongly supported proposed Sec.  
200.23(a), which would require each State to periodically conduct a 
resource allocation review in each of its LEAs serving a significant 
number of schools identified for comprehensive support and improvement 
or targeted support and improvement. One commenter observed that 
resource inequities identified through such reviews could contribute to 
certain LEAs having a disproportionate number of schools identified for 
improvement, and that reducing such inequities could improve 
achievement for all students.
    Discussion: The Department appreciates the support of these 
commenters for the proposed regulations and agrees that reducing 
inequitable resource allocation practices in LEAs and schools can help 
improve student achievement as well as other educational outcomes. 
Given the potential impact of these efforts, we are revising the final 
regulations to clarify that this periodic review considers the same 
resources that are reviewed by an LEA as part of comprehensive support 
and improvement plans for schools that are so identified. We are also 
revising the final regulations to further clarify that this periodic 
review considers ``resources available'' to emphasize that the review 
considers how allocation practices ultimately affect the availability 
of resources among LEAs and schools.
    Changes: We have revised Sec.  200.23(a) to require a State to 
periodically review ``resources available'' in LEAs with a significant 
number of percentage of schools identified for comprehensive or 
targeted support and improvement as compared to all other LEAs in the 
State, and in schools in those LEAs as compared to all other schools in 
the State, and to clarify that the resources included in this review 
must include the same resources an LEA reviews for purposes of a 
comprehensive support and improvement plan.
    Comments: One commenter requested that the final regulations 
clarify the meaning of the term ``significant number of schools'' as 
used in proposed Sec.  200.23. Another commenter recommended that the 
phrase be revised to read ``significant number or percentage of 
schools'' to avoid over-identification of large urban districts for 
additional State support.
    Discussion: We decline to provide a more precise definition of the 
term ``significant number of schools'' because it may vary according to 
local circumstances, but we agree that adding ``or percentage'' to the 
term is a helpful clarification and are revising the final regulations 
accordingly.
    Changes: We have revised the regulations to replace the term 
``significant number of schools'' with the term ``significant number or 
percentage of schools'' throughout.
    Comments: One commenter recommended requiring such reviews at least 
once every three years, rather than periodically, to encourage 
alignment of the reviews with needs assessments for schools identified 
for comprehensive support and improvement.
    Discussion: We appreciate the commenter's intention of aligning 
resource reviews with school identification timelines, but decline to 
make the recommended change in recognition that States may need 
discretion to account for variations in State identification timelines 
as well as capacity to carry out required reviews.
    Changes: None.
    Comments: One commenter recommended that the Department provide 
more specific parameters around the resource allocation reviews 
required by proposed Sec.  200.23(a), including the timeline for 
reviews, disaggregation of expenditures targeted to specific subgroups 
of students, an assessment of student needs, and the inclusion of all 
districts for comparison purposes. Another commenter recommended that 
in addition to examining resource allocation between LEAs and between 
schools, States also look at resource inequities between grades (e.g., 
between preschool and kindergarten).
    Discussion: The Department appreciates commenters' desire for more 
granular data and information as part of resource reviews, as well as 
interest in expanding the comparison categories, but generally declines 
to include additional parameters in the final regulations to avoid 
increasing State and local burdens in conducting the reviews. We are, 
however, revising the language in Sec.  200.23(a) to clarify the 
entities to be used for comparison purposes in the review of available 
resources.
    Changes: We have revised Sec.  200.23(a) to specify that each State 
must, with respect to each LEA in the State serving a significant 
number or percentage of schools identified for comprehensive support 
and improvement or targeted support and improvement, periodically 
review resources available between such LEAs and all other LEAs in the 
State and between schools in those LEAs and all other schools in the 
State.
    Comments: One commenter recommended revising proposed Sec.  
200.23(a) to include a requirement that States evaluate schools 
implementing comprehensive support and improvement plans to determine 
whether such schools are improving more quickly than schools with a 
comparable student population.
    Discussion: We believe that adding an evaluation requirement to the 
resource review requirements in the final regulations would impose 
significant burden on States unrelated to the resource reviews required 
under section 1111(d)(3)(A)(ii) of the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter opposed the resource allocation reviews 
required by proposed Sec.  200.23(a) because they would require States 
to review and potentially address teacher distribution issues related 
to disproportionate rates of ineffective, out-of-field, or 
inexperienced teachers in one or more LEAs or schools. The commenter 
also believes that the final regulations should not define 
``resources'' for the purpose of the resource allocation reviews 
required by section 1111(d)(3)(A)(ii) of the ESEA, as amended by the 
ESSA.
    Discussion: States, with respect to each LEA in the State serving a 
significant number or percentage of schools identified for 
comprehensive support and improvement or targeted support and 
improvement, will be required to review and take actions to address 
differences in rates of ineffective, out-of-field, or inexperienced 
teachers in LEAs and schools by Sec.  299.18(c) of the final 
regulations and section 1111(g)(1)(B) of the ESEA, as amended by the 
ESSA; the resource reviews merely reinforce these actions by requiring 
States to periodically review educator data in the context of school 
improvement needs. We also believe that defining a minimum set of 
resources that must be reviewed supports effective State implementation 
of the required resource reviews while also reducing the burden of such 
reviews by highlighting readily available resource data collected in 
accordance with other requirements under the ESEA, as amended by the 
ESSA.
    Changes: None.
    Comments: One commenter opposed the resource allocation reviews 
required by proposed Sec.  200.23(a) on grounds that such reviews could 
lead to SEA efforts to override the authority of local school districts 
over their own budgets. The commenter expressed further concern that 
such SEA actions might not take

[[Page 86159]]

into account the local context for resource allocation decisions.
    Discussion: The Department believes that the proposed language 
requiring State actions to address resource inequities ``to the extent 
practicable,'' which is retained in the final regulations, will 
encourage a collaborative approach by States and LEAs in responding to 
any identified resource inequities.
    Changes: None.
    Comments: One commenter opposed proposed Sec.  200.23(a) because of 
what the commenter claimed to be the difficulty of disaggregating costs 
paid for with general categorical funding.
    Discussion: The Department recognizes that disaggregating State and 
local expenditures may be challenging, but notes that States and LEAs 
must report per-pupil expenditures of Federal, State, and local funds 
annually under section 1111(h)(1)(C)(x) of the ESEA, as amended by the 
ESSA.
    Changes: None.
State Technical Assistance
    Comments: One commenter recommended that the final regulations 
include language encouraging States to include in the description of 
the technical assistance it will provide under proposed Sec.  200.23(b) 
an explanation of how it will work with external partners with 
expertise in identifying or implementing school improvement strategies. 
The commenter believes that external organizations provide a ready 
resource that can help build State capacity to provide effective 
technical assistance to districts and schools. Another commenter 
similarly recommended the addition of language to proposed Sec.  
200.23(b)(3) regarding tools for implementing evidence-based 
interventions, including practices available through the Department's 
Regional Educational Laboratories and Comprehensive Assistance Centers.
    Discussion: The Department agrees that external partners and 
resources can help States provide more effective technical assistance 
and other support to districts and schools, but declines to require or 
otherwise specify the use of such partners or resources in the final 
regulations. We will take these comments into consideration in 
developing non-regulatory guidance related to State-provided technical 
assistance.
    Changes: None.
    Comments: One commenter recommended revisions to proposed Sec.  
200.23(b) encouraging States to (1) provide guidance to districts on 
how to conduct a school-level needs assessment, with an emphasis on 
using assessment results to select evidence-based interventions; (2) 
promote the use of existing evidence-based intervention resources, 
including the Department's What Works Clearinghouse operated by the 
IES; and (3) develop a policy framework for sustainable school 
turnaround that includes additional resources, district-level reforms, 
tiered intervention strategies, stakeholder engagement, teacher and 
principal pipelines, and rigorous evaluation activities.
    Discussion: The Department appreciates the commenter's interest in 
promoting more effective State support for school improvement, as well 
as the potential role of the What Works Clearinghouse in expanding the 
use of evidence-based interventions, but declines to require or 
otherwise specify additional State-level activities in this area in the 
final regulations. We will take these comments into consideration in 
developing non-regulatory guidance related to State-provided technical 
assistance.
    Changes: None.
    Comments: One commenter recommended revisions to proposed Sec.  
200.23(b) emphasizing that sustained school improvement requires (1) 
that evidence-based interventions selected by LEAs and schools are 
clearly connected to the findings of the needs assessment; (2) 
continuous monitoring of implementation, including through rapid-cycle 
impact evaluations; and (3) that States build the evidence base through 
piloting of interventions in areas where the evidence base is weak or 
no evidence exists.
    Discussion: The Department appreciates the commenter's interest in 
promoting stronger State support for the use of evidence-based 
practices but declines to require or otherwise specify additional 
activities in this area in the final regulations. We believe it more 
appropriate to discuss these activities in non-regulatory guidance. We 
also note that Sec.  200.21(d) requires a comprehensive support and 
improvement plan to include one or more evidence-based interventions 
that are supported, to the extent practicable, by the strongest level 
of evidence that is available and appropriate to meet the needs 
identified in the needs assessment.
    Changes: None.
Additional State Improvement Actions
    Comments: One commenter stated that proposed Sec.  200.23(c)(1), 
which provides examples of additional school-level improvement actions 
that a State may take in LEAs with a significant number of schools 
identified for comprehensive support and improvement that are not 
meeting exit criteria or a significant number of schools identified for 
targeted support and improvement, is inconsistent with section 
1111(e)(1)(B)(iii)(VI) of the ESEA, as amended by the ESSA, which 
provides that nothing in the statute authorizes the Secretary, as a 
condition of approval of the State plan, to prescribe any specific 
school support and improvement strategies for use by States or LEAs. 
Two commenters recommended moving the specified interventions to non-
regulatory guidance.
    Discussion: The list of interventions in proposed Sec.  
200.23(c)(1) is illustrative only, and is intended to provide examples 
of the types of meaningful actions a State may take to initiate 
additional improvement in any LEA, or in any authorized public 
chartering agency, in a school identified for comprehensive support and 
improvement or targeted support and improvement that has failed to 
respond to other interventions. For this reason, we believe it is 
appropriate to provide examples of such actions in regulation rather 
than in non-regulatory guidance. The final regulations, like the 
proposed regulations, do not require a State to take any of these 
actions and thus in no way prescribe any specific LEA or school support 
or improvement strategies. Therefore, Sec.  200.23(c)(1)is not 
inconsistent with section 1111(e)(1)(B)(iii)(VI) of the ESEA, as 
amended by the ESSA. We further note that the additional improvement 
actions contemplated by the statue clearly include actions at both the 
LEA and school levels. Consequently, we are revising the final 
regulations to include examples of LEA-level improvement action 
(including reducing the LEA's operational or budgetary autonomy; 
removing one or more schools from the jurisdiction of the LEA; or 
restructuring the LEA, including changing its governance or initiating 
State takeover of the LEA), as well as action a State might take with 
regard to an authorized public chartering agency.
    Changes: We have revised Sec.  200.23(c)(1) to include examples of 
improvement actions a State may take at the LEA level and examples of 
improvement actions in an authorized public chartering agency.
    Comments: One commenter recommended that the final regulations give 
States flexibility to determine the improvement activities to be 
carried out under proposed Sec.  200.23(c)(1). Another commenter 
recommended removal of the list of interventions in proposed Sec.  
200.23(c)(1) because it believes that

[[Page 86160]]

such a list may discourage the use of evidence-based interventions that 
would better address the improvement needs of the school identified 
through its needs assessment.
    Discussion: The list of interventions in proposed Sec.  
200.23(c)(1) is intended to provide examples of the types of meaningful 
actions a State may take in a chronically low-performing school that 
has failed to respond to other interventions. The list is illustrative 
only, and we do not believe it will preclude or otherwise discourage 
States from considering other types of interventions in such schools, 
including evidence-based interventions that respond to schools' needs 
assessments. We are, however, revising the school leadership example to 
emphasize the importance of selecting new leadership with the skills 
and experience needed to turn around low-performing schools. We also 
are revising Sec.  200.23(c) to clarify that a State may take the 
specified additional school improvement actions only to the extent that 
they are consistent with State law.
    Changes: We have revised Sec.  200.23(c) to clarify that the 
additional improvement actions taken by a State must be consistent with 
State law. We also have revised the replacing school leadership example 
in 200.23(c)(1) to emphasize the importance of replacing school 
leadership with leaders who are trained for, or have a record of, 
success in low-performing schools.
    Comments: One commenter recommended revising proposed Sec.  
200.23(c)(1) to clarify that States may take additional improvement 
actions in LEAs with a significant number of schools that are both 
identified for targeted support and improvement and not meeting exit 
criteria. The commenter believes that, similar to the proposed 
parameters for LEAs with a significant number of schools identified for 
comprehensive support and improvement, LEAs with schools identified for 
targeted support and improvement should be given time for the schools 
to improve before State intervention may be triggered. Another 
commenter recommended that schools identified for targeted support and 
improvement not be subject to the interventions specified in proposed 
Sec.  200.23(c)(1); this commenter believes that schools identified for 
targeted support and improvement that are not meeting exit criteria are 
addressed adequately by the requirement for amended improvement plans 
in proposed Sec.  200.22(e)(2).
    Discussion: We appreciate the first commenter's desire for 
consistent treatment of schools identified for comprehensive support 
and improvement and targeted support and improvement that may be 
subject to additional improvement action by the State under Sec.  
200.23(c)(1). However, the categories of schools to which additional 
improvement actions apply are specified by section 1111(d)(3)(B)(i) of 
the ESEA, as amended by the ESSA, and the Department does not have the 
discretion to modify these categories. Similar considerations apply to 
the concern expressed by the second commenter; schools identified for 
targeted support and improvement (in an LEA with a significant number 
of such schools) are potentially subject to additional improvement 
action under the ESEA, as amended by the ESSA, albeit at the discretion 
of the State.
    Changes: None.
    Comments: A few commenters opposed the language in proposed Sec.  
200.23(c)(1) authorizing a State to take additional improvement action 
in any authorized public chartering agency with a significant number of 
schools identified for comprehensive support and improvement that are 
not meeting exit criteria or a significant number of schools identified 
for targeted support and improvement. One commenter asserted that the 
proposed regulation confused the roles of charter authorizers and 
charter operators, noting that authorizers are limited to monitoring 
school performance and using their non-renewal and charter revocation 
authority to close low-performing schools, rather than providing 
support and intervention to such schools. The same commenter warned 
that the proposed regulation could encourage States to take actions 
regarding charter authorizers that are inconsistent with State charter 
school law. Another commenter emphasized that the statutory provision 
in section 1111(c)(5) of the ESEA, as amended by the ESSA, which 
requires ESEA accountability provisions to be implemented for charter 
schools in accordance with State charter school law, together with 
implementing regulations in proposed Sec.  200.12, are sufficient to 
ensure strong accountability for public charter schools, and that 
proposed Sec.  200.23(c)(1) would potentially lead to less rigorous 
accountability actions by subjecting low-performing public charter 
schools to improvement and intervention, rather than revocation and 
closure. This commenter further noted that the proposed regulations 
could create a disincentive for such agencies to serve high-need 
populations or restart low-performing traditional public schools for 
fear of reaching the ``significant number'' threshold that might 
trigger State intervention. Another commenter stated that the proposed 
application of additional State improvement actions to authorized 
public chartering agencies would not be consistent with the ESEA, as 
amended by the ESSA, which does not include any accountability 
provisions for such entities in part A of title I. One commenter 
expressed concern that the proposed regulations would encourage 
authorizing agencies to revoke the charters of any identified charter 
school in an LEA serving a significant number of identified schools, a 
decision that might not always be the best approach or consistent with 
the requirements of an individual charter.
    Discussion: The Department appreciates the concerns expressed by 
these commenters, but continues to believe that authorized public 
chartering agencies should, consistent with State charter school law, 
be subject to the same improvement actions as similarly performing 
LEAs. However, we are revising the final regulations to emphasize that 
such actions must respect the unique status and structure of charter 
school arrangements under State charter school law.
    Changes: We have revised Sec.  200.23(c)(1) to clarify that any 
action to revoke or non-renew a school's charter must be taken in 
coordination with the applicable authorized public chartering agency 
and be consistent with the terms of the school's charter.
    Comments: One commenter expressed concern that the language in 
proposed Sec.  200.23(c)(1) regarding the revocation or non-renewal of 
a charter school's charter could be read as authorizing a closure of a 
charter school that would not be consistent with the school's charter. 
The commenter noted that, for example, the school's charter might call 
instead for restarting the schools under new governance or hiring a new 
charter school operator. For this reason the commenter recommended 
revised language emphasizing that any State-determined intervention 
under proposed Sec.  200.23(c)(1) must be consistent with both the 
terms of the school's charter and State charter school law.
    Discussion: We agree with the commenter's recommendation, and are 
revising the final regulations to clarify that any State-determined 
action in a charter school under Sec.  200.23(c)(1) must respect the 
unique status and structure of charter school arrangements under both 
State charter school law and the terms of the school's charter.
    Changes: We have revised Sec.  200.23(c)(1) to clarify that any 
action to revoke or non-renew a school's

[[Page 86161]]

charter must be taken in coordination with the applicable authorized 
public chartering agency and be consistent with both State charter 
school law and the terms of the school's charter.
    Comments: One commenter recommended the addition of expanded 
learning time strategies to the list of school-level improvement 
actions in proposed Sec.  200.23(c)(1).
    Discussion: We recognize that the use of expanded learning time 
strategies may be an important component of a school improvement plan 
but decline to make additions to the list of actions in Sec.  
200.23(c)(1), which is intended to be illustrative only and does not 
constrain a State from taking other actions such as those recommended 
by the commenter.
    Changes: None.
    Comments: Three commenters opposed the provision in proposed Sec.  
200.23(c)(2) permitting a State to establish an exhaustive list of 
State-approved, evidenced-based interventions for use in schools 
implementing comprehensive support and improvement or targeted support 
and improvement plans. Two of these commenters stated that this 
provision would limit local innovation in identifying and implementing 
evidence-based interventions, and noted that there is no statutory 
basis for limiting the evidence-based interventions available to an 
LEA. These commenters did not oppose a non-exhaustive list of State-
approved, evidence-based interventions, but maintained that districts 
should be permitted to select and implement evidence-based 
interventions without restriction. One commenter supported what it 
described as the flexibility for States to establish exhaustive or non-
exhaustive lists of evidence-based interventions for use in identified 
schools. Another commenter stated that the terms ``exhaustive'' and 
``non-exhaustive'' could be confusing to stakeholders; for example, an 
``exhaustive'' list could suggest either a complete compilation of all 
evidence-based interventions or an exclusive list of State-approved 
interventions that must be used by districts and schools. This 
commenter also encouraged the Department to clarify whether a State may 
adopt existing lists of evidence-based interventions rather than 
develop their own lists.
    Discussion: The Department appreciates the concerns expressed by 
these commenters, but continues to believe that States should have the 
discretion to establish (or adopt) and approve an exhaustive list 
(i.e., from which an LEA must choose) or a non-exhaustive list (i.e., 
from which an LEA may choose) of interventions for use in schools 
implementing comprehensive or targeted support and improvement. This is 
not contrary to the ESEA or other regulatory requirements because it is 
permissible for States to create any such list and still requires that 
each identified school implement evidence-based interventions, 
consistent with the definition of evidence-based in title VIII of the 
ESEA.
    Changes: None.
    Comments: One commenter recommended that the Department specify the 
inclusion of community schools and extended learning opportunities in 
State lists of evidence-based practices under proposed Sec. Sec.  
200.23(c)(2) and (3). Another commenter requested that the Department 
highlight dropout prevention and recovery strategies, while a third 
commenter recommended the addition of school leadership programs and 
interventions as examples of evidence-based State-determined 
interventions in the final regulations.
    Discussion: We decline to add specific categories of possible 
evidence-based interventions or strategies to the final regulations 
beyond the broad category of ``whole-school reform models.'' The 
purpose of the regulations in this area is to describe how States may 
create their own lists of evidence-based interventions or develop their 
own evidence-based interventions, and not to require or promote 
specific practices.
    Changes: None.
    Comments: One commenter recommended a range of changes to proposed 
Sec.  200.23(c) aimed at supporting more effective use of evidence-
based interventions, including requiring States to provide more 
information on the evidence associated with each State-approved 
intervention; periodic updates of State-approved lists of evidence-
based interventions; and State-sponsored, rigorously evaluated pilots 
of interventions in areas for which there is no evidence base.
    Discussion: The Department appreciates the commenter's interest in 
promoting more effective use of evidence-based practices but declines 
to require or otherwise specify additional State-level activities in 
this area in the final regulations. We believe such activities may be 
addressed more appropriately, taking into account varying needs and 
capacities across States, through non-regulatory guidance.\26\
---------------------------------------------------------------------------

    \26\ See: http://www2.ed.gov/policy/elsec/leg/essa/guidanceuseseinvestment.pdf. Non-Regulatory Guidance: Using Evidence 
to Strengthen Education Investments.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter recommended replacing the term 
``intervention'' with ``strategies'' when referring to whole-school 
improvement strategies in proposed Sec.  200.23(c)(3).
    Discussion: We believe these terms are largely interchangeable in 
the school improvement context and decline to make the recommended 
change.
    Changes: None.
    Comments: One commenter recommended revisions to proposed Sec.  
200.23 that would require that additional improvement actions, if taken 
by a State, in schools where students receive instruction primarily 
through a Native American language, including any State-approved 
evidence-based interventions and any State-determined, school-level 
improvement actions, be based on research in schools where the Native 
American language is the primary medium of education, be conducted in 
the school's particular Native American language of instruction, and 
not limit the preservation or use of Native American languages and 
their distinctive features.
    Discussion: The Department appreciates the concerns of the 
commenter that any additional State improvement actions taken in a 
Native American language medium school reflect and respect the 
importance of the language of instruction in such schools. Although we 
agree that States should not take improvement action without taking 
into account the unique nature and characteristics of Native American 
language medium schools, we decline to add specific requirements for 
such schools to the final regulations. The regulations provide 
sufficient flexibility for States to take into consideration multiple 
factors. We also note that during the required State consultation with 
local tribes prior to submitting the State plan (see Sec.  299.15), 
local tribes can provide input regarding these issues, and we hope that 
the State, LEA and local tribes will work together towards the best 
interests of the affected students.
    Changes: None.
    Comments: One commenter observed that the provisions regarding 
State-determined interventions and State-approved lists of evidence-
based interventions in proposed Sec.  200.23(c) appear inconsistent 
with other provisions in the ESEA, as amended by the ESSA, emphasizing 
local discretion to develop and implement improvement plans in schools 
identified for comprehensive support and improvement or targeted 
support and improvement.
    Discussion: The final regulations, like the proposed regulations, 
reflect the

[[Page 86162]]

additional actions that States may take under the ESEA, as amended by 
the ESSA, to support meaningful and effective school improvement, 
particularly in LEAs with significant numbers of identified schools, 
including schools identified for comprehensive support and improvement 
that are not meeting exit criteria. Section 1111(d)(3) of the ESEA, as 
amended by the ESSA, recognizes that in such circumstances, local 
discretion over school improvement may not be working and thus it may 
be appropriate for a State to take a stronger role. Further, section 
1111(d)(3)(B)(ii) specifically permits a State to establish alternative 
evidence-based, State-determined strategies that can be used in schools 
identified for comprehensive support and improvement, consistent with 
State law. The regulations give States flexibility to ``establish'' 
such strategies or interventions either by creating lists of State-
approved, evidence-based interventions or by developing their own 
State-determined interventions. We are revising Sec.  200.23(c)(3) to 
clarify the difference between these two approaches and to include the 
statutory authority for State-determined interventions.
    Changes: We have revised Sec.  200.23(c)(3) to clarify that this 
provision permits States to develop their own evidence-based 
interventions and to reference the authority for such action in section 
1111(d)(3)(B)(ii) of the ESEA, as amended by the ESSA.
    Comments: None.
    Discussion: Proposed Sec.  200.23(c)(4) allowed a State to request 
that LEAs submit to the State for review and approval the amended 
targeted support and improvement plan required for each school in the 
LEA that is identified for targeted support and improvement and not 
meeting exit criteria over an LEA-determined number of years. After 
further consideration, we determined that this language was confusing. 
If a State chooses to conduct this review, we believe the State should 
be able to require an LEA to submit an amended plan for review and 
approval.
    Changes: We have revised Sec.  200.23(c)(4) to permit a State to 
require, rather than request, that an LEA submit to the State for 
review and approval the amended targeted support and improvement plan 
for each school that is required to develop such a plan under 
200.22(e)(2)(i).

Section 200.24 Resources To Support Continued Improvement

LEA Application
    Comments: Several commenters expressed support for the LEA 
application requirements in proposed Sec.  200.24(b). One commenter 
supported the requirement for an assurance that each school an LEA 
proposes to serve with section 1003 school improvement funds will 
receive all of the State and local funds it would have otherwise 
received; this commenter also requested clarification on accountability 
regarding the use of funds awarded under section 1003.
    Discussion: The Department appreciates the commenters' support of 
the requirements for LEA applications for school improvement funds. We 
believe any further clarification on accountability regarding the use 
of funds under section 1003 is more appropriate for non-regulatory 
guidance or technical assistance.
    Changes: None.
    Comments: A few commenters expressed confusion regarding proposed 
Sec.  200.24(b)(1)-(2), and asked the Department to clarify that an LEA 
would not have to determine the interventions it will implement in a 
school before conducting a needs assessment and developing a plan on 
the basis of that assessment.
    Discussion: In order to submit an application that meets all 
requirements, an LEA will have to conduct its needs assessment and 
determine the evidence-based interventions that best address the needs 
identified before submitting its application. We acknowledge that, 
depending on the timing of a State's process for awarding section 1003 
funds, it could be difficult for an LEA to complete the necessary 
processes prior to submitting its application. Given the various 
timelines and procedures in place in different States, however, we 
decline to modify the regulations to dictate a specific timeline for 
allocating section 1003 funds. States should consider the general 
school improvement requirements, including the requirements to complete 
a needs assessment and identify evidence-based interventions based on 
that assessment, and the application process and timeline for funds 
under section 1003.
    Changes: None.
    Comments: A number of commenters recommended revisions to the LEA 
application provisions in the proposed regulations, including requiring 
to describe that each school will implement one or more evidence-based 
interventions based on strong, moderate, or promising evidence; 
requiring a demonstration that selected interventions address the 
results of the school's needs assessment; requiring that interventions 
are based on the strongest evidence available; and requiring a 
description of how the LEA will conduct the needs assessment; and 
requiring a description of the qualifications of any external partners.
    Discussion: We believe the application requirements in Sec.  
200.24(b), combined with the separate but related requirements for 
comprehensive support and improvement plans in Sec.  200.21, largely 
address the concerns of commenters while also striking the right 
balance between ensuring appropriate accountability for the effective 
use of section 1003 funds and recognizing State and local discretion in 
developing school improvement processes that address local needs and 
circumstances. Consequently, we decline to include additional 
application requirements in these final regulations.
    Changes: None.
    Comments: One commenter suggested that we require a description of 
the rigorous review process an LEA will use for all external service 
providers, not just those with which the LEA will partner for school 
improvement activities. This commenter further recommended that LEAs 
include in their applications information on their timelines and 
metrics for evaluating external providers, and that the regulations 
permit pay-for-performance contracts with external providers.
    Discussion: We believe it is beyond the scope of Sec.  200.24 to 
expand the requirements for review of external providers to cover all 
external providers, and not just those supporting school improvement 
projects funded through section 1003 of the ESEA, as amended by the 
ESSA. We further believe that other requirements related to external 
providers proposed by commenters, including the use of pay-for-
performance contracts, are best left to the discretion of States and 
LEAs, most of which already have similar requirements in place based on 
their experience in implementing the supplemental educational services 
requirements of the ESEA, as amended by the NCLB.
    Changes: None.
    Comments: One commenter requested that the regulations require a 
rigorous review process of the interventions to be implemented rather 
than of the external provider that may help carry out the activities. 
Another commenter suggested that the LEA's application should describe 
how it will support schools in the continuous monitoring, 
implementation, and evaluation of

[[Page 86163]]

interventions to ensure that any necessary adjustments are made in a 
timely fashion.
    Discussion: Under Sec.  200.24(d)(1)(iii), States must evaluate the 
use of funds under section 1003, including the impact of evidence-based 
interventions on student outcomes or other related outcomes and must 
disseminate the results of these efforts. Additionally, in the LEA 
application, an LEA must describe its plan to monitor each school for 
which the LEA receives school improvement funds, which may include 
reviewing both the implementation and impact of the selected 
interventions. Given these requirements, the Department declines to 
make any changes in response to these comments.
    Changes: None.
Allocation of School Improvement Funds to LEAs
    Comments: Several commenters requested that the Department clarify 
that a State may distribute school improvement funds through a 
combination of formula and competitive grants. Another commenter, 
however, recommended that funding for school improvement be based on a 
formula designed with input from stakeholders, rather than through a 
competitive process.
    Discussion: Section 1003(b)(1)(A) of the ESEA, as amended by the 
ESSA, expressly permits States to make school improvement grants to 
LEAs on a formula or competitive basis. Accordingly, there is no need 
for the regulations to clarify that school improvement funds may be 
distributed through a combination of formula and competitive grants, 
and the Department lacks the authority to remove this statutory 
flexibility. For States that elect to distribute school improvement 
funds solely through a formula, nothing in the statute or the final 
regulations prohibits them from seeking stakeholder input on that 
formula.
    Changes: None.
    Comments: A couple of commenters requested that the Department 
clarify whether the proposed minimum grant size in Sec.  
200.24(c)(2)(ii) is annual or cumulative for schools identified for 
comprehensive and targeted support and improvement.
    Discussion: The recommended minimum grant sizes of $500,000 and 
$50,000 in the regulations for each school identified for comprehensive 
or targeted support and improvement, respectively, are annual. The 
Department does not believe that additional regulatory language is 
needed to clarify this point. We note, however, that while these are 
the recommended grant sizes, the general requirement is for States to 
make awards of sufficient size to help LEAs effectively implement all 
requirements of a support and improvement plan developed under Sec.  
200.21 or Sec.  200.22 of the final regulations, including selected 
evidence-based interventions.
    Changes: None.
    Comments: A number of commenters provided feedback on the proposed 
minimum grant sizes for comprehensive and targeted support schools in 
Sec.  200.24(c)(2)(ii). Many of these commenters opposed the proposed 
minimum grant size, or any specific minimum grant size, noting that the 
Department should leave it to the States to decide the size of the 
grant. Those commenters stated that the proposed minimum grant sizes in 
the regulations are arbitrary, reduce flexibility, result in 
inefficiency, and do not take into account student populations or the 
unique needs of each school.
    Several commenters stated that the minimum grant sizes are 
inconsistent with the statutory provisions allowing the State to 
establish the method to allocate the funds and requiring the grants to 
be of sufficient size to enable an LEA to effectively implement 
improvement activities. One commenter stated that the minimum grant 
size requirement assumes that additional funding is the key to 
successful school improvement, while other commenters suggested that 
many low-performing or rural schools may struggle to spend such 
significant amounts of funding.
    Several commenters also noted that for some States, requiring 
awards of at least $500,000 to schools identified for comprehensive 
support and improvement would make it impossible to serve all such 
schools, or to make any awards to schools identified for targeted 
support and improvement. On the other hand, one commenter suggested 
that the proposed $50,000 minimum award for targeted support and 
improvement schools might not be sufficient to prevent such schools 
from ultimately becoming comprehensive support and improvement schools. 
Another commenter recommended different minimum award sizes, suggesting 
$30,000 for targeted support schools and $100,000 for comprehensive 
support schools, and suggested that rather than requiring the LEA's 
application demonstrate that a smaller award is appropriate, that the 
LEA's application must demonstrate that a larger award is appropriate. 
A few commenters also opposed requiring LEAs to justify awards below 
the proposed minimum award sizes.
    Finally, several commenters recommended alternatives to regulating 
minimum grant sizes, including allowing States to propose their own 
minimum grant sizes or to simply base award sizes on such factors as 
the school size, the needs of students, and the interventions to be 
implemented.
    Discussion: The minimum grant sizes required for school improvement 
awards under section 1003 of the ESEA, as amended by the ESSA, are not 
intended to limit States and LEAs from recognizing differences among 
schools, but rather to ensure that the grants LEAs receive to support 
schools identified for comprehensive and targeted support and 
improvement are of sufficient size to support effective implementation 
of evidence-based interventions and improve student outcomes. For 
example, the much higher minimum grant size for comprehensive support 
schools is intended to support the broad, fundamental, whole-school 
reforms that are consistent with both the purpose and requirements of 
comprehensive support and improvement plans under the ESEA, as amended 
by the ESSA. The statute and regulations recognize diversity among 
schools by requiring each State to give priority in awarding funds to 
LEAs with the greatest need for such funds and the strongest commitment 
to using funds to improve student outcomes--priorities that permit 
States to take into account such factors as school size, student needs, 
and selected interventions when making section 1003 awards that exceed 
minimum grant sizes. We also believe that because the regulations 
already include flexibility for States to make smaller grants, there is 
no need to either modify the proposed minimum grant sizes or create 
alternative methods that States might use to determine section 1003 
grant sizes. For these reasons, we are retaining minimum award sizes 
for section 1003 grants in the final regulations. However, we are 
revising the regulations to specifically incorporate some of the 
factors suggested by commenters that may justify awards below the 
$500,000 and $50,000 minimum grant sizes.
    Changes: We have revised Sec.  200.24(c)(2)(ii) to clarify that the 
characteristics a State must consider in choosing to award a grant that 
is less than the minimum grant size include enrollment, identified 
needs, selected evidence-based interventions, and other relevant 
factors described in the LEA's application on behalf of the school.
    Comments: One commenter stated that, provided there is not an 
increase in title I funding and in the absence of a ``hold harmless'' 
provision for the

[[Page 86164]]

school improvement fund set-aside taken by the SEA, many LEAs may 
actually see a decrease in the amount of funds they receive for school 
improvement. The commenter advocated for the use of all school 
improvement funds at the local level, rather than the SEA level, and 
recommended that all minimum grant sizes be removed so States can make 
adjustments to award sizes based on title I appropriations.
    Discussion: This commenter appears to be concerned that in some 
cases, the larger State-level school improvement reservation required 
by section 1003(a) of the ESEA, as amended by the ESSA, could reduce an 
LEA's regular title I, part A allocation below the amount it received 
in the prior year. Further, the commenter appears to recommend that 
some portion of section 1003 funds (including the State share of school 
improvement funding), rather than being used to support school 
improvement, should be used to compensate or ``restore'' regular LEA 
title I, part A allocations. This recommendation is wholly inconsistent 
with the requirements of the ESEA, as amended by the ESSA, which 
requires section 1003 funds to be used solely for school improvement 
activities, and not to supplement regular title I, part A allocations.
    Changes: None.

State Responsibilities: Greatest Need and Strongest Commitment; 
Requirement To Evaluate Efforts; Renewing Grants

    Comments: A few commenters recommended that the Department 
eliminate proposed Sec.  200.24(c)(4)(i), which requires that a State 
award funds to LEAs to serve schools identified for comprehensive 
support and improvement ahead of those identified for targeted support 
and improvement. Some of these commenters noted that section 1003 of 
the ESEA, as amended by the ESSA, does not distinguish between 
comprehensive and targeted support and improvement schools. Another 
commenter stated that the requirement to serve schools identified for 
comprehensive support and improvement before schools identified for 
targeted support and improvement unduly limits States' and LEAs' 
ability to allocate resources to best meet the needs of their schools. 
Several commenters stated that LEAs should determine which 
comprehensive or targeted support and improvement schools receive 
funding when there are insufficient funds to award a grant of 
sufficient size to each LEA that submits an approvable application. 
Commenters were particularly concerned that, under the proposed 
regulations, no targeted support and improvement schools would ever 
receive funding due to the minimum grant award requirements.
    Discussion: The Department appreciates the commenters' concern that 
schools identified for targeted support and improvement may not always 
receive funding under section 1003 of the ESEA, as amended by the ESSA. 
However, section 1003 of the ESEA, as amended by the ESSA, requires 
States to identify schools with the greatest need. We believe that 
schools identified for comprehensive support and improvement are the 
schools with the greatest need because they are the lowest-performing 
schools in the State.
    Although we strongly agree that schools with low-performing and 
consistently underperforming subgroups need additional support, 
including additional fiscal resources to do so, we recognize that 
resources under section 1003 are limited and are therefore requiring 
that States focus those funds on the lowest performing schools overall. 
While LEAs have the discretion to determine which comprehensive support 
and improvement schools they serve first, it would be inconsistent with 
the statute to serve targeted support schools first.
    Changes: None.
    Comments: One commenter stated that States should take into account 
the size and characteristics of the student population that will be 
served, in addition to ``greatest need.''
    Discussion: Although the Department declines to make any changes in 
response to this comment, the required factors in proposed Sec.  
200.24(c)(4)(ii) are minimum requirements. Thus, a State may include 
additional factors when determining greatest need, such as the 
characteristics of the student population, to the extent they are 
consistent with the statute and regulations.
    Changes: None.
    Comments: One commenter recommended that States give preference to 
LEAs that have (1) invested their own resources in school improvement, 
(2) selected evidence-based interventions that best address their needs 
assessments, (3) plans to monitor and evaluate programs to promote 
continuous improvement, and (4) demonstrated a commitment to using 
evidence.
    Discussion: We believe most of the factors recommended as 
priorities by the commenter reflect existing requirements for 
improvement plans under the ESEA, as amended by the ESSA, and thus 
would not support meaningful differentiation among applicants. The 
exception, which is the extent to which an LEA has invested its own 
resources in school improvement, potentially excludes many high-poverty 
LEAs with few resources of their own but great need for additional 
school improvement funding. Consequently, we decline to modify the 
priorities included in the final regulation, though we note that States 
may include additional factors beyond those in proposed Sec.  
200.24(c)(4), to the extent that they are consistent with the statute 
and regulations.
    Changes: None.
    Comments: A few commenters stated that the regulations establishing 
the factors a State must consider in determining which LEAs demonstrate 
the ``greatest need'' for school improvement funds and the ``strongest 
commitment'' to use those funds to improve academic achievement and 
student outcomes in the lowest-performing schools exceed the 
Department's authority, or impose an unnecessary burden on SEAs or 
LEAs. These commenters stated that these determinations should be left 
to States, and suggested including the factors listed in the 
regulations as examples, rather than requirements, of how a State might 
make these determinations. A couple of commenters opposed particular 
factors for consideration, including resource allocation among LEAs and 
current academic achievement, with a couple of these commenters 
asserting that the requirement to look at resource allocation is 
contrary to the statute. One of these commenters also asserted that, 
through these regulations, the Department was attempting to influence 
the allocation of State and local funds, which the commenter believed 
to be prohibited by section 8527(a) of the ESEA, as amended by the 
ESSA.
    Discussion: We disagree with the comments asserting that these 
regulations exceed the Department's authority. Section 1003(f) of the 
ESEA, as amended by the ESSA, requires a State, in allocating section 
1003 school improvement funds, to give priority to LEAs that 
``demonstrate the greatest need for such funds, as determined by the 
State'' and that ``demonstrate the strongest commitment to using [such] 
funds . . . to enable the lowest-performing schools to improve student 
achievement and student outcomes.'' The statute, however, does not 
clearly define the terms ``greatest need'' or ``strongest commitment.'' 
We believe the regulations are necessary to clarify the statutory terms 
and to ensure that States

[[Page 86165]]

meet these statutory requirements in a way that advances the purpose of 
section 1111(d)(1) and (2) as well as the overall purpose of title I--
to improve student outcomes and close educational achievement gaps. As 
such, we believe these requirements fall squarely within the scope of 
title I, part A of the statute as well as the Secretary's rulemaking 
authority under GEPA, the DEOA, and section 1601(a) of the ESEA, as 
amended by the ESSA, and do not violate section 1111(e) (see discussion 
of the Department's rulemaking authority under the heading Cross-
Cutting Issues). Further, we believe that the requirements strike the 
proper balance between ensuring compliance with these key provisions of 
the statute while maintaining States' authority to make determinations 
regarding the award of school improvement funds. We do not agree with 
commenters that these requirements add new or unnecessary burden to 
States and LEAs because States and LEAs must meet these requirements; 
the regulations clarify how they must do so.
    Further, we disagree that the requirements in Sec.  
200.24(c)(4)(ii) violate section 8527 of the ESEA, as amended by the 
ESSA. That provision states that nothing in the ESEA authorizes an 
officer or employee of the Federal Government ``to mandate, direct, or 
control'' a State, LEA, or school's allocation of State or local 
resources. As the requirements in Sec.  200.24(c)(4)(ii) simply 
establish the factors a State must consider in determining how to 
prioritize awards of Federal school improvement funds, it in no way 
``mandates, directs, or controls'' the allocation of State or local 
resources.
    Changes: None.
    Comments: Several commenters supported the requirement that a State 
consider, in determining strongest commitment, the proposed use of 
evidence-based interventions supported by the strongest level of 
evidence. One commenter recommended giving priority to an LEA that 
maximizes the use of evidence-based interventions in all appropriate 
aspects of its improvement plan, while another commenter recommended 
that the State consider the degree to which the LEA maximizes the use 
of evidence-based interventions supported by evidence that is both 
rigorous and relevant to the problems to be addressed.
    Discussion: We agree with commenters that it is not only the rigor 
of the evidence supporting interventions that should be considered, but 
also whether the interventions to be implemented address the full scope 
of problems to be addressed. Thus, we are revising Sec.  
200.24(c)(4)(iii)(A) to require that a State consider, in determining 
strongest commitment, the proposed use of evidence-based interventions 
and whether they are sufficient to support the school in making 
progress toward meeting the exit criteria under Sec. Sec.  200.21 or 
200.22.
    Changes: We have revised Sec.  200.24(c)(4)(iii)(A) to require that 
a State consider, in determining strongest commitment, not only the 
proposed use of evidence-based interventions that are supported by the 
strongest level of evidence available, but also whether the evidence-
based interventions are sufficient to support the school in making 
progress toward meeting exit criteria under Sec. Sec.  200.21 or 
200.22.
    Comments: One commenter opposed Sec.  200.24(c)(4)(iii)(A), 
asserting that this provision requires levels of evidence not required 
by the statute and which may impose financial burdens on LEAs that must 
conduct their own studies to meet the required evidence levels.
    Discussion: Section 200.24(c)(4)(iii)(A) is consistent with section 
8101(21)(B) of the ESEA, as amended by the ESSA, which requires that 
the activities and strategies funded under section 1003 of the ESEA 
meet the requirements for strong, moderate, or promising evidence under 
section 8101(21)(A). Further, the regulations do not limit the award of 
section 1003 funds to an applicant implementing interventions at a 
specific evidence level, nor do they require LEAs to expend their own 
funds to conduct studies. States may support LEAs in conducting or 
reviewing existing studies, and States and LEAs may use existing 
sources of studies, including the What Works Clearinghouse.
    Changes: None.
    Comments: Several commenters supported the inclusion of family and 
community engagement in the proposed regulations as a factor a State 
must consider in determining strongest commitment. One commenter also 
encouraged a greater allocation of resources for family and community 
engagement.
    Discussion: The Department appreciates the support of commenters 
for this provision. We note that LEAs have the flexibility to spend as 
much as is reasonable and necessary for family and community engagement 
under section 1003, and thus, decline to address this issue in the 
final regulations.
    Changes: None.
    Comments: One commenter suggested that the regulations include a 
commitment to delivering a well-rounded education for all students in 
proposed Sec.  200.24(c)(4)(iii) as a factor to be considered in 
determining strongest commitment.
    Discussion: The Department agrees that access to a well-rounded 
education is a key goal supported by the ESEA, as amended by the ESSA, 
but notes that an emphasis on a well-rounded education may not be 
consistent with the requirements of comprehensive and targeted support 
and improvement plans, which generally must focus on the specific 
academic needs of students that led to identification. For this reason, 
we decline to make changes in response to this comment.
    Changes: None.
    Comments: One commenter requested that the Department strike or 
clarify the requirement in Sec.  200.24(d)(2)(ii) that if a State, 
using funds under section 1003, directly provides for school 
improvement activities or arranges for their provision through an 
external provider that such a provider have a ``record of success.''
    Discussion: We believe it is essential that a State directly 
providing these services through an external provider ensure that such 
a provider has a record of success in helping LEAs and schools. We also 
believe that each State should have flexibility in determining whether 
a provider has a record of success, the criteria for which may vary 
depending on the services and assistance that the provider will offer, 
and decline to constrain this flexibility through any changes to the 
final regulations.
    Changes: None.
    Comments: A few commenters supported the focus in Sec.  200.24(d) 
on the evaluation and dissemination of findings on the impact of 
evidence-based interventions funded with section 1003 funds. Several 
commenters encouraged the Department to expand this evaluation 
requirement to include studying the implementation of the evidence-
based interventions, not just the impact of such interventions. Another 
commenter recommended revising proposed Sec.  200.24(d)(1)(iii) to 
require that States disseminate results of their evaluation efforts not 
only to LEAs with schools identified under Sec.  200.19, but also to 
all LEAs in the State.
    Discussion: The Department appreciates commenters' support of the 
evaluation and dissemination provisions for evidence-based 
interventions funded by section 1003. These provisions are intended to 
strike a balance between the need to build the evidence base on school 
improvement interventions and the recognition that many States may have 
limited resources and capacity to carry out such work;

[[Page 86166]]

consequently, we decline to add to these requirements.
    Changes: None.
    Comments: A few commenters objected to the regulations making 
annual renewal of section 1003 school improvement awards contingent on 
a determination that a funded school is making progress on a State's 
goals and indicators. One commenter suggested clarifying the definition 
of ``progress'' by looking at data from the School Improvement Grants 
program, while another recommended the addition of examples of leading 
indicators that might be used to demonstrate progress.
    Discussion: The Department appreciates these comments and 
understands that the process of improvement in a low-performing school 
can take several years and requires a plan for sustainability, 
consistent with the statutory acknowledgement that schools may need a 
grant for up to four years. Under the statute and regulations, the 
State defines the long-term goals and measurements of progress and 
determines how much progress is sufficient to support renewing an LEA's 
school improvement grant. For example, the State could set growth goals 
on the indicator or measure that resulted in the schools' 
identification, either for the all students group or particular 
subgroups. We believe this flexibility, in combination with the 
regulations, strikes the right balance between providing appropriate 
support for school improvement efforts and ensuring accountability for 
the effective expenditure of taxpayer funds. Therefore, the Department 
declines to make changes in response to these comments, and believes 
that any further clarification would be provided more appropriately 
through non-regulatory guidance.
    Changes: None.
    Comments: None.
    Discussion: In reviewing the proposed regulations, the Department 
believes it is helpful to clarify what States will be required to 
submit in their title I State plans under section 1111 of the ESEA, as 
amended by the ESSA, to ensure that States are fulfilling their 
responsibilities under Sec.  200.24(d). While proposed Sec.  200.12 
required that each State plan must include information about the 
State's process for ensuring development and implementation of school 
improvement plans consistent with the requirements of Sec.  200.24, it 
will be more helpful for States if greater specificity regarding the 
required information is described in Sec.  200.24. As Sec.  200.24(d) 
includes five specific State responsibilities regarding funds under 
section 1003 of the ESEA, as amended by the ESSA, we are revising the 
final regulations to specify that a State must describe how it will 
fulfill these responsibilities in its State plan.
    Changes: We have revised Sec.  200.24(d) to clarify that a State 
must describe how it will meet the requirements pertaining to State 
responsibilities for funds under section 1003 of the ESEA, as amended 
by the ESSA.
Eligibility for School Improvement Funds
    Comments: One commenter stated that before the passage of the ESSA, 
States were able to identify schools for supports if they were title I 
eligible. However, the commenter stated that under the proposed 
regulations, States are no longer afforded that option. Similarly, 
another commenter stated that the regulations are not clear that any 
school identified for comprehensive or targeted support and improvement 
is eligible for school improvement funding, regardless of title I 
status. This commenter recommended including language in the 
regulations stating that any school that is identified for 
comprehensive or targeted support under section 1111(d) of the ESEA, as 
amended by the ESSA, should be eligible for funding under section 
1003(a), regardless of whether such school participates, or is eligible 
to participate, under title I.
    Discussion: The relationship between title I status and eligibility 
for school improvement support has changed under the ESEA, as amended 
by the ESSA, and section 1003(b)(1)(A) of the ESEA is requires that any 
school that is identified for comprehensive or targeted support and 
improvement is eligible for school improvement funding under section 
1003. Section 200.19 of the regulations clearly identifies which 
schools must be identified for comprehensive or targeted support and 
improvement, clarifying which categories of schools include title I and 
non-title I schools. Section 200.24(a) reiterates the statutory 
requirement that any schools meeting the statutory definition of 
comprehensive or targeted support and improvement are eligible for 
funds under section 1003. Therefore, we decline to add additional 
regulatory language to Sec.  200.24 to this point.
    Changes: None.
Other Reporting Requirements
    Comments: A few commenters recommended that each State make 
publicly available on its State report card a list of LEAs and schools 
eligible for school improvement funds that did not receive them, due to 
insufficient funds at the State level.
    Discussion: While the information requested by commenters is 
available on State report cards (which must include all schools 
identified for comprehensive or targeted support and improvement--and 
thus eligible for school improvement funding--and those receiving 
school improvement funds), insufficient funding is not the only reason 
that some eligible schools might not receive funding. Any State that 
implements the statutory priorities for targeting school improvement 
funds, ensures that each grant is of sufficient size to support full 
and effective implementation of the evidence-based interventions 
selected by each grantee, and generally adheres to minimum grant size 
requirements is unlikely to have sufficient resources under section 
1003 of the ESEA, as amended by the ESSA, to award a grant to each LEA 
such that every identified school receives funding. In addition, not 
every LEA with one or more eligible schools is likely to apply for 
section 1003 funds, particularly if the State implements a rigorous 
application process consistent with the requirements of the ESEA, as 
amended by the ESSA, and applicable regulations.
    Changes: None.
Specific Uses of School Improvement Funds
    Comments: Several commenters asked the Department to clarify that 
specific uses of funds are permissible under section 1003 of the ESEA, 
as amended by the ESSA, including: Expansion of access to high-quality, 
developmentally appropriate early education; the creation of new 
charter schools to serve students enrolled in schools identified for 
comprehensive support and improvement, and other students in the local 
community and low-performing schools; and summer learning and 
enrichment activities.
    Discussion: The use of funds provided under section 1003 of the 
ESEA, as amended by the ESSA, generally is governed by the requirements 
for comprehensive or targeted support and improvement plans in 
Sec. Sec.  200.21 and 200.22, as well as the evidence requirements in 
section 8101(21)(B) of the ESEA, as amended by the ESSA. Consequently, 
the uses of funds proposed by the commenters would be allowable only as 
part of such improvement plans, thus it would be potentially misleading 
and inconsistent with the ESEA, as amended by the ESSA, to specify 
particular uses of section 1003 funds outside of those plans.

[[Page 86167]]

    Changes: None.
    Comments: One commenter requested that the Department specify that 
Parent Training and Information Centers may be used as a resource for 
improvement activities.
    Discussion: The Department believes that it would be more 
appropriate to identify the wide range of resources that States and 
LEAs could enlist in support of school improvement activities, 
including Parent Training and Information Centers, through non-
regulatory guidance and other technical assistance than in these final 
regulations.
    Changes: None.
Other Comments on School Improvement Funds
    Comments: One commenter requested that the Department clarify 
whether several schools could share a single allocation of funds for 
comprehensive and targeted support and improvement if they have similar 
challenges and are willing to undertake collaborative projects to 
develop and implement intervention strategies. Similarly, another 
commenter requested allowing States to combine school-level allocations 
in a zone-approach to managing turnaround of two or more schools 
identified for improvement.
    Discussion: The Department appreciates these comments and the 
creative approaches to effectively use limited funds. However, the 
Department's interpretation of section 1003 of the ESEA, as amended by 
the ESSA, is that a district must apply for funds on behalf of one or 
more specific schools to ensure that each application meets all of the 
requirements with respect to that school. Even though each application 
must be separate, schools and LEAs may choose to collaborate as they 
complete the applications and may determine that it is appropriate in 
some cases to share certain resources as they implement their 
interventions such as, for example, technical assistance providers, 
professional development resources, or instructional coaches. For these 
reasons, the Department declines to make any changes in response to 
these comments.
    Changes: None.
    Comments: One commenter expressed general opposition to the 
reporting requirements in proposed Sec.  200.24(e) and recommended 
removing them because they generally opposed data collection and 
reporting.
    Discussion: Subsection 200.24(e) merely incorporates into 
regulation the reporting requirements related to section 1003 funds 
found in section 1111(h)(1) of the ESEA, as amended by the ESSA.
    Changes: None.
    Comments: One commenter recommended adding a new provision to 
proposed Sec.  200.24 that would require each State and LEA involved in 
the allocation of funds under section 1003(a) of the ESEA, as amended 
by the ESSA, to assure that LEA applications on behalf of schools, 
including charter schools, serving students primarily instructed 
through a Native Language instruction program include provisions that 
improvement support will be in the Native American language. The 
commenter also recommended that the LEA assure the selected 
interventions: (1) Include evidence-based interventions that are 
conducted through a Native American language and which are based on 
evidence that was obtained through research in a school conducted 
primarily through a Native American language; (2) do not limit the 
preservation or use of Native American languages; and (3) are specific 
to the specific Native American language of instruction and its 
distinctive features. Finally, the commenter recommended that the State 
and LEA assure that external partners of an LEA include staff fully 
proficient in the Native American language used in the school receiving 
support.
    Discussion: The Department believes that the existing requirements 
for school improvement plans, including such elements as the needs 
assessment required for comprehensive support and improvement schools, 
stakeholder consultation requirements, and the selection of evidence-
based interventions are sufficient to address the concerns of the 
commenter. For example, one consideration in selecting appropriate 
evidence-based interventions is determining whether the research 
supporting the effectiveness of the intervention was collected based on 
a population that overlaps with the population of students to be served 
in the identified school. For these reasons, the Department declines to 
make any changes in response to this comment.
     Changes: None.
    Comments: One commenter asked that the Department clarify that the 
term ``intervention'' is a reference to schoolwide improvement 
strategies for improving student outcomes, rather than individual-level 
student interventions.
    Discussion: We believe that the term ``intervention'' reasonably 
means different things in different contexts. While ``intervention'' 
could refer to a whole-school reform strategy, it also could mean an 
activity focused on addressing a particular academic need for a low-
performing subgroup or, in some cases, individual student-level 
interventions.
    Changes: None.
    Comments: One commenter suggested that the Department add 
``scheduling'' to the list of operational flexibilities in proposed 
Sec. Sec.  200.24(b)(7) and 200.24(d)(1)(v) that an SEA or LEA consider 
providing to support full and effective implementation of comprehensive 
and targeted support and improvement plans. This commenter stated that 
this addition is necessary to ensure that principals have autonomy to 
make critical school-level decisions regarding not only staffing and 
budgets, but also scheduling. In addition, this commenter recommended 
adding to proposed Sec.  200.24(b)(8) an assurance that the new 
principal, if applicable, will be identified on a timeline that allows 
for meaningful participation in the planning activities so that new 
principals have sufficient time to plan before the school year begins.
    Discussion: We agree with the commenter that there may be other 
areas of operational flexibility beyond budgeting and staffing, 
including scheduling, that States or LEAs should consider providing, as 
appropriate, to ensure full and effective implementation of school 
improvement plans. However, we believe that States and LEAs are best 
positioned to determine which areas of operational flexibility should 
be considered, and decline to add any further examples beyond those 
already included in the non-exhaustive list in the regulations.
    Changes: None.
    Comments: One commenter recommended requiring States to provide 
some type of support to targeted support and improvement schools that 
do not receive section 1003 funds.
    Discussion: We agree that States should provide technical 
assistance and other support to all identified schools, including 
schools that do not benefit from section 1003 funds, and we note that 
States may use their 5 percent State-level set-aside under section 1003 
for this purpose. However, we decline to require such support in the 
final regulations because it could conflict with other provisions in 
the ESEA, as amended by the ESSA, such as the requirement that States 
prioritize school improvement technical assistance and related support 
to LEAs with significant numbers or percentages of identified schools.
    Changes: None.

[[Page 86168]]

    Comments: One commenter stated that the way funding is allocated to 
support school improvement is unnecessary and extremely time consuming 
to document.
    Discussion: The requirements and procedures for awarding section 
1003 school improvement funds are closely tied to the requirements of 
the ESEA, as amended by the ESSA, and are designed to both ensure that 
school improvement funds are used effectively to support improved 
student outcomes in identified schools and to ensure appropriate 
accountability for taxpayer-provided funds. However, we appreciate that 
the term ``allocate'' may imply that States should provide detailed 
documentation about their fiscal allocation process; therefore, we are 
revising Sec.  200.24(d)(1)(i) to clarify that the State must describe, 
in its State plan, its process to award grants to LEAs.
    Changes: We have revised Sec.  200.24(d)(1)(i) to clarify that each 
State must describe, in its State plan under section 1111 of the ESEA, 
as amended by the ESSA, the process to award grants to LEAs under 
section 1003.
    Comments: One commenter supported the requirement making schools 
identified for targeted support and improvement due to low assessment 
participation rates ineligible for section 1003 school improvement. 
This commenter also requested clarification regarding whether schools 
that do not meet exit criteria after the initial award period can 
receive additional school improvement funding. This commenter stated 
that the regulations do not specify what occurs after the award period 
expires if the school has not met the defined exit criteria.
    Discussion: We appreciate the commenter's support and further 
clarify that grants under section 1003 may be awarded for up to four 
years, and thus may be continued for schools that do not meet their 
exit criteria, provided that such schools take the actions required by 
either Sec. Sec.  200.21(f) for schools identified for comprehensive 
support or 200.22(e) for schools identified for targeted support.
    Changes: None.

Sections 200.30 and 200.31 Annual State and LEA Report Card

General
    Comments: Several commenters expressed support for proposed 
regulations clarifying statutory requirements for the State and LEA 
report cards required by the ESEA, as amended by the ESSA, and 
highlighted increased transparency and disaggregation for many of the 
data elements as particularly helpful. Conversely, some commenters 
expressed general opposition to the proposed regulations, variously 
asserting that they exceed statutory requirements; would be burdensome 
to implement; and, based on past experience, would be unlikely to 
result in better student outcomes.
    Discussion: The Department appreciates support for the State and 
LEA report card regulations and notes that they are consistent with 
sections 1111(h)(1)(C) and 1111(h)(2)(C) of the ESEA, as amended by the 
ESSA, which maintain a majority of the State and LEA report card 
requirements required by NCLB and add several new requirements.
    The Department values transparency, consistent with the statute, 
and disagrees that efforts to support improvements in teaching and 
learning have not benefited from the State and LEA report card 
provisions under the ESEA, as amended by NCLB. With respect to LEA 
report cards in particular, there is evidence that when school quality 
information, including information about school accountability results, 
is provided to parents, they pay attention and respond.\27\ Report 
cards can positively impact the extent to which parents engage in their 
children's education and, in turn, help to improve student outcomes. As 
such, we believe that any burden imposed by the report card 
requirements is outweighed by the resulting educational benefits.
---------------------------------------------------------------------------

    \27\ Black, S.E. (1999). ``Do better schools matter? Parental 
valuation of elementary education.'' Quarterly Journal of Economics, 
114 (2): 577-99.
    Charbonneau, E., & Van Ryzin, G.G. (2012). ``Performance 
measures and parental satisfaction with New York City Schools.'' 
American Review of Public Administration, 42 (1): 54-65.
    Figlio, D.N. & Lucas, M.E. (2004). ``What's in a grade? School 
report cards and the housing market.'' American Economic Review, 94 
(3): 591-604.
    Hastings, J.S. & Weinstein, J.M. (2008). ``Information, school 
choice, and academic achievement: Evidence from two experiments.'' 
Quarterly Journal of Economics, 123 (4): 1373-414.
    Jacobsen, R. & Saultz, A. (2013). ``Do good grades matter? 
Public accountability data and perceptions of school quality.'' In 
The Infrastructure of Accountability, ed. Anagnostopoulos, D., 
Rutledge, S.A., & Jacobsen, R. Cambridge, MA: Harvard Education 
Press.
    Jacobsen, R., Saultz, A. & Snyder, J.W. (2013). ``When 
accountability strategies collide: Do policy changes that raise 
accountability standards also erode public satisfaction?'' 
Educational Policy, 27 (2): 360-89.
    Koning, P. & Wiel, K.V.D. (2013). ``Ranking the Schools: How 
school-quality information affects school choice in the 
Netherlands.'' Journal of the European Economic Association, 11 (2): 
466-493.
    Nunes, L.C., Reis. A.B., & Seabra, C. (2015). ``The publication 
of school rankings: A step toward increased accountability?'' 
Economics of Education Review, 49 (December): 15-23.
    Rockoff, J.E. & Turner, L.J. (2008). Short run impacts of 
accountability on school quality. Working Paper 14564, National 
Bureau of Economic Research, http://www.nber.org/papers/w14564.
---------------------------------------------------------------------------

    In response to commenters who generally opposed the requirements on 
the ground that they exceed the statutory requirements, as discussed 
previously in the discussion of Cross-Cutting Issues, the Department 
has rulemaking authority under section 410 of GEPA, section 414 of the 
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA. 
Given that authority and that these regulations fall squarely within 
the scope of title I, part A of the statute, consistent with section 
1111(e), the regulations need not be specifically authorized by the 
statute, nor is the Department limited to issuing regulations that 
merely restate the requirements in the statute.
    Changes: None.
Development of Report Cards in Consultation With Parents
    Comments: Many commenters supported proposed Sec. Sec.  
200.30(b)(1) and 200.31(b)(1), which require that State and LEA report 
cards be developed in consultation with parents. Some commenters 
requested that the language be expanded to require consultation with 
other stakeholders as well, including teachers, principals, other 
school leaders, specialized instructional support personnel, and 
special education teachers. Some commenters suggested that each State 
also be required to describe its consultation process. Additionally, 
one commenter asserted that the statute does not require parental 
consultation on the LEA report card and, therefore, such consultation 
would be more appropriately addressed through non-regulatory guidance.
    Discussion: We appreciate the support from many commenters who 
share our belief that it is essential that the perspectives of 
parents--who are among the primary consumers of State and LEA report 
cards--be solicited, considered, and incorporated into the report card 
development process. We also believe that while the ESEA, as amended by 
the ESSA, does not specifically require consultation with parents in 
the development of LEA report cards, requiring such consultation falls 
within the scope of and is consistent with the statutory consultation 
requirement for State report cards, consistent with section 1111(e) of 
the ESEA, as amended by the ESSA. Moreover, we believe parental 
consultation on LEA report cards is particularly important given that 
these report cards typically contain the school- and district-level

[[Page 86169]]

information that is most relevant and useful to parents. In addition, 
as discussed previously in the section on Cross-Cutting Issues, the 
Department's rulemaking authority under section 410 of GEPA, section 
414 of the DEOA, and section 1601(a) of the ESEA, as amended by the 
ESSA, allows it to issue regulatory provisions not specifically 
authorized by statute.
    States and LEAs have discretion to include other stakeholders in 
the development of their report cards and we believe they are likely to 
include many of the individuals suggested by commenters. As noted 
previously, however, the emphasis of the regulations on parental 
consultation is based on the requirements of the ESEA, as amended by 
the ESSA. For these reasons, we decline to specify additional 
stakeholders in the final regulations.
    Changes: None.
Accessibility of Notices, Documentation, and Information
    Comments: Many commenters remarked on the requirements that appear 
in several sections of the proposed regulations (including proposed 
Sec. Sec.  200.30(c), 200.30(d)(1)(i), 200.31(c), 200.31(d)(1), 
200.31(d)(2), 200.32(b), 299.13(f), and 299.18(c)(4)(v)), regarding the 
use of Web sites to disseminate required information including, for 
example, annual State and LEA report cards and a State's consolidated 
State plan or individual program State plan. Further, while proposed 
Sec.  200.21(b) does not explicitly mention posting of the notice that 
an LEA must provide to parents of students in schools identified for 
comprehensive or targeted support and improvement on a Web site, some 
commenters suggested that a Web site may be the vehicle through which 
LEAs meet this requirement.
    While a small number of commenters supported the accessibility 
requirements generally, several commenters asserted that the 
requirements do not sufficiently ensure that parents and other 
stakeholders are able to access the documentation and information 
discussed in the proposed requirements. Specifically, many commenters 
expressed concern regarding the accessibility for individuals with 
disabilities, and requested that we strengthen the requirements. For 
example, commenters recommended requiring that Web sites conform with 
the World Wide Web Consortium's Web Content Accessibility Guidelines 
(WCAG) 2.0 Level AA and the Web Accessibility Initiative Accessible 
Rich Internet Applications Suite (WAI-ARIA) 1.0 for web content. In 
addition, some commenters recommended that States and LEAs ensure that 
parents without home access to the Internet are provided with the 
information included on State and LEA report cards.
    Further, many commenters suggested that the Department strengthen 
the provisions to accommodate parents with limited English proficiency 
by, for example, requiring that such documentation and information be 
available in the most populous languages in the State or LEA, as 
applicable, or that the Department define certain terms in the proposed 
accessibility requirements (e.g., ``to the extent practicable''). 
Finally, several commenters suggested that the Department require 
States to provide information included on State report cards in an 
easily accessible manner that is publicly downloadable by all visitors 
to a State's Web site without restrictions, necessary permissions, or 
fees.
    Discussion: We agree that all parents and other stakeholders, 
including those with disabilities and those who have limited English 
proficiency, must have meaningful access to documentation and 
information that States and LEAs disseminate. Such access is critical 
in order to understand State, LEA, and school performance and progress, 
meaningfully engage in reform efforts, and help to ensure that all 
children have an opportunity to meet a State's academic standards.
    Although the ESEA, as amended by the ESSA, and its implementing 
regulations require that certain information on State or LEA Web sites 
be ``accessible,'' the requirement that Web sites be accessible to 
individuals with disabilities is also based on the Federal civil rights 
requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. 794, 
title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et 
seq., and their implementing regulations, all of which are enforced 
against SEAs and LEAs by the Department's Office for Civil Rights 
(OCR).
    Although the Department does not currently require States and LEAs 
to use specific Web site accessibility standards, under the ESEA, as 
amended by the ESSA, and Federal civil rights laws and regulations, 
States and LEAs must ensure that information provided through 
electronic and information technology, such as on Web sites, is 
accessible to individuals with disabilities. In OCR's enforcement 
experience, where a State or LEA provides required information through 
Web sites, it may be difficult to ensure compliance with accessibility 
requirements without adherence to modern standards such as the WCAG 2.0 
Level AA standard, which includes criteria that provide comprehensive 
Web accessibility to individuals with disabilities--including those 
with visual, auditory, physical, speech, cognitive, developmental, 
learning, and neurological disabilities. Accordingly, we strongly 
encourage States and LEAs that disseminate information via Web sites to 
consider that standard as they take steps to ensure that their Web 
sites comply with requirements of these regulations and with Federal 
civil rights laws. WCAG 2.0 has been designed to be technology neutral 
to provide Web developers more flexibility to address accessibility of 
current as well as future Web technologies; in addition, Level AA 
conformance is widely used, indicating that it is generally feasible 
for Web developers to implement. The developers of WCAG 2.0 have made 
an array of technical resources available on the W3C Web site at no 
cost to assist entities in implementing the standard. For more 
information, see www.w3.org/WAI/.
    Similarly, the Department expects that States and LEAs will provide 
access for parents who may not have online access, such as by providing 
online access at their local school or LEA administrative office. 
Regarding requests to add accessibility requirements to ensure that 
parents with limited English proficiency can access documentation and 
information, including by defining certain terms in the proposed 
accessibility requirements (e.g., ``to the extent practicable''), 
please see additional discussion in Sec.  200.21(b)(2).
    Finally, with respect to making SEA and LEA report card data 
available to be downloaded, while the Department encourages States and 
LEAs to make available the information included on report cards in 
easily accessible, downloadable formats that are freely open to the 
public, the Department declines to impose additional potentially 
burdensome requirements on States and LEAS given the extent of 
information required by the statute for inclusion on report cards.
    Changes: None.
Recommendations To Include Additional Information on State and LEA 
Report Cards
    Comments: Many commenters recommended that the Department add 
additional requirements, data elements, or other information to State 
and/or LEA report cards. Specifically, several commenters recommended 
that the Department require that report cards

[[Page 86170]]

provide for comparability of all State and LEA report card data at the 
State, LEA, and school levels, and that data be presented such that it 
can be easily compared across LEAs. Some of these commenters further 
requested that the Department specify certain parameters for States 
choosing to meet the cross-tabulation assurance under section 
1111(g)(2)(N) of the ESEA, as amended by the ESSA, via their State 
report cards, including that the data be in certain file formats to 
ensure that it can be easily downloaded and analyzed.
    Several commenters requested that the Department require additional 
data elements or information not required by the statute be included on 
State and LEA report cards, including, for example, disaggregation by 
additional subgroups such as justice-involved youth and American 
Indians; further disaggregation within subgroups currently required 
including Asian American/Pacific Islanders, English learners, and 
students with disabilities; indication of subgroups too small for 
reporting; reporting on whether an LEA chooses the exemption under 
Sec.  200.21(g) for a high school identified for comprehensive support 
and improvement and, if so, the reason for such exemption; more 
prominent information on subgroups whose performance declined so that 
school-level declines are not attributed to any one subgroup; data on 
access to technology resources; data on access to the arts in high- 
versus low-poverty schools; and information on how LEAs will use funds 
under title I and elsewhere to support activities that coordinate and 
integrate before- and after-school programs.
    One commenter appreciated the Department indicating that States and 
LEAs can add information related to the number and percentage of 
students attaining career and technical proficiencies. Finally, two 
commenters requested additional information, including student 
achievement data on subject areas in addition to reading/language arts 
and mathematics (report cards also require results of the State's 
science assessments) and results on the indicators in a State's 
accountability system for all schools, including those that have not 
been identified as comprehensive or targeted support and improvement 
schools.
    Discussion: The ESEA, as amended by the ESSA, maintains the 
majority of the State and LEA report card provisions required under the 
ESEA, as amended by NCLB, and adds several additional reporting 
requirements. For example, LEA report cards must continue to include 
information on how the academic achievement of students in the LEA 
compares to that of students in the State as a whole and, at the school 
level, how the academic achievement of students in the school compares 
to that of students in the LEA and the State, respectively, in reading/
language arts, mathematics, and science. Further, the ESEA, as amended 
by the ESSA, requires that LEA report cards include, for all schools 
(not solely schools identified for comprehensive or targeted support 
and improvement), results on the indicators in a State's accountability 
system including, for example, information on the performance on the 
other academic indicator under section 1111(c)(4)(B)(ii) of the ESEA, 
as amended by the ESSA, used by the State in the State accountability 
system for public elementary schools and secondary schools that are not 
high schools; high school graduation rates; and information on the 
performance on the other indicator or indicators of School Quality or 
Student Success under section 1111(c)(4)(B)(v) of the ESEA, as amended 
by the ESSA, used by the State in the State accountability system, 
etcetera.
    With respect to additional requirements that commenters recommended 
the Department add to the State and LEA report card regulations, while 
we agree that States and LEAs should strive to develop report cards 
that convey data and information in ways that maximize use by parents 
and others, we believe that the requirements for State and LEA report 
cards under section 1111(h)of the ESEA, as amended by the ESSA, and 
Sec. Sec.  200.30 through 200.37 sufficiently ensure that State and LEA 
report cards will be transparent and maximally useful to parents and 
other stakeholders. Further, States and LEAs can, if they choose to do 
so, display graphically, or in other ways, comparisons of State, LEA, 
and school performance on data elements other than student academic 
achievement on the assessments required under section 1111(b)(2). 
States choosing to meet the cross-tabulation assurance under section 
1111(g)(2)(N) of the ESEA, as amended by the ESSA, via their State 
report cards, can provide the data--as well as other data reported on 
report cards--in certain file formats to ensure that it can be easily 
downloaded and analyzed. The Department believes that doing so would 
facilitate use by a wide range of consumers of report cards, including 
people who may use the data to identify trends that may be of use to 
States, LEAs, and schools in engaging in data driven decision making. 
However, we are not requiring States to do so, as this may impose 
additional burden for some States.
    With respect to requiring additional information on State and LEA 
report cards that is not required under section 1111(h)(1)-(2) of the 
ESEA, as amended by the ESSA, and proposed Sec. Sec.  200.30-200.37, 
given the extent of information that is required for inclusion on State 
and LEA report cards, the Department declines to require additional 
information. However, sections 1111(h)(1)(C)(xiv) and (h)(2)(C)(iii) of 
the ESEA, as amended by the ESSA, provide for both States and LEAs, at 
their discretion, to include additional information that they believe 
will help parents and other stakeholders understand State, LEA, and 
school performance and progress. Such additional information could 
include any or all of the data elements that commenters noted above. In 
particular, in light of the student demographics in particular States, 
LEAs, or schools, States or LEAs may wish to report on the performance 
of additional student subgroups not required under the ESEA, as amended 
by the ESSA, or further disaggregate required reporting elements by 
subgroups that are not required under the ESEA. For example, States and 
LEAs may wish to disaggregate data by subgroups, such as justice-
involved youth or American Indians, that are not required under the 
ESSA, as amended by the ESSA. Doing so may help to better identify the 
needs of students in these subgroups and support State, LEA, and school 
efforts to improve teaching and learning for these students.
    In general, States and LEAs have flexibility to go beyond what 
section 1111(h)(1)(C), (2)(C) and Sec. Sec.  200.30 through 200.37 
require regarding presentation and information required on State and 
LEA report cards. For example, States and LEAs can provide report card 
data in formats that can be easily downloaded, add additional 
information unique to their State and local contexts, and include 
additional comparative data or provide mechanisms for the public to 
generate such comparisons. The Department supports State and LEA report 
cards that both align with the requirements in the ESEA, as amended by 
the ESSA, and are tailored to the unique composition and needs of 
States and LEAs.
    Changes: None.
State and LEA Report Card Overview
    Comments: Some commenters supported the overview section in 
proposed Sec. Sec.  200.30(b)(2) and 200.31(b)(2) on either or both the 
State and LEA report cards, explaining that such a section will help 
ensure that

[[Page 86171]]

parents and other stakeholders encounter key metrics about State, LEA, 
and school performance as the first information when they review report 
cards.
    Conversely, some commenters opposed the overview section 
requirements on either or both the State and LEA report card. Some 
commenters asserted that the overview requirements extend beyond what 
is required for State and/or LEA report cards under sections 
1111(h)(1)-(2) of the ESEA, as amended by the ESSA. Others asserted 
that the parameters were too prescriptive and decisions of content and 
format for the overview sections would best be left to States and LEAs 
or addressed in non-regulatory guidance. A few commenters specified 
that States should be able to decide, in particular, whether or not to 
include a school's summative rating on the LEA report card overview for 
each school served by the LEA. One commenter recommended that the 
Department allow for States to differentiate the content of the State 
and LEA report card overview sections so that these sections can be 
tailored to what parents need to know most given the particular State 
and LEA context. One commenter suggested that providing disaggregated 
data for some subgroups but not others on the report card overview 
section could be confusing.
    Specific to the format of the LEA report card overview for each 
school served by the LEA, several commenters contended that the 
required information would not fit on a single sheet of paper as 
required in proposed Sec.  200.31(b)(3). Others suggested that the 
Department be mindful of the need to ensure that the font size on the 
LEA report card overview for each school served by the LEA be of 
sufficient size to be able to effectively communicate information. One 
commenter suggested that the page length of the LEA report card 
overview for each school served by the LEA cannot be appropriately 
determined until a State finalizes the elements of its accountability 
system. Finally, other commenters requested clarification regarding 
what exactly constitutes a single sheet of paper.
    Discussion: We appreciate the comments that support the State and 
LEA report card overview section, and concur that the overview section 
will help parents and the public more effectively access and consider 
data in engaging in State, LEA, and school reform efforts. Particularly 
given the amount of information that State and LEA report cards must 
include under the ESEA, as amended by the ESSA, the overview section 
serves to highlight certain data elements in order to quickly convey 
State, LEA, and school performance and progress. With the flexibility 
States are given to include extensive accountability system indicators 
in evaluating the performance and progress of schools, a school's 
determination is an important piece of summary information that will 
help provide a holistic picture of school performance and progress. The 
information to be included on the State and LEA overviews can help to 
provide context for reviewing the full data elements on State and LEA 
report cards.
    The State and LEA report card overviews align with the requirement 
in sections 1111(h)(1)(B) and 1111(h)(2)(B) of the ESEA, as amended by 
the ESSA, that report cards be concise and presented in an 
understandable and uniform format. In particular, the overview sections 
serve to succinctly convey State, LEA, and school performance and 
progress while not abandoning minimum statutory report card 
requirements related to transparent and accurate presentation of a 
broad range of data and therefore fall squarely within the scope of 
section 1111(h) of the ESEA, as amended by the ESSA, consistent with 
section 1111(e). As discussed previously in the discussion of Cross-
Cutting Issues, the Department has rulemaking authority under section 
410 of GEPA, section 414 of the DEOA, and the section 1601(a) of the 
ESEA, as amended by the ESSA. Given that authority, it is not necessary 
for the statute to specifically authorize the Secretary to issue a 
particular regulatory provision.
    Regarding the subgroups included on the overview section, States 
and LEAs have discretion as to whether to include all disaggregated 
subgroups required under section 1111(c)(2) of the ESEA, as amended by 
the ESSA, and Sec.  200.16(a), while including, at a minimum, the 
subgroups a State uses for accountability purposes consistent with 
Sec.  200.16. While the Department believes that it is critical to 
identify the needs of all subgroups for which the statute requires 
disaggregated reporting, gathering an understanding of the performance 
that led to a school's accountability determination can help frame 
school performance overall and provide context for the further 
disaggregation that will be provided in the full State and LEA report 
cards.
    Further, the Department agrees with several commenters that the LEA 
overview section for each school served by the LEA must be of 
sufficient length and font size to meet the goal of providing critical 
information to help parents and other stakeholders understand key 
metrics of State, LEA, and school performance. We also agree that 
additional flexibility is needed to do so. To help determine the most 
appropriate length and font size of the LEA overview for each school 
served by the LEA, LEAs should include discussion of this LEA report 
card section when they consult with parents in the development of the 
LEA report cards as required under Sec.  200.31(b)(1).
    Finally, given the concern regarding length of the overview 
section, rather than prescribe a particular length, we are deleting the 
requirement for that the LEA report card overview for each school 
served by the LEA be limited to a single piece of paper. Thus, the 
regulations need not clarify what constitutes a single sheet of paper.
    Changes: We revised Sec.  200.31(b)(3) to remove the requirement 
that the LEA overview for each school served by the LEA be on a single 
sheet of paper.
Dissemination of LEA Report Card School-Level Overviews
    Comments: Some commenters addressed the requirement in proposed 
Sec.  200.31(d)(3)(i) regarding dissemination of the LEA report card 
overview for each school served by the LEA. One commenter commended the 
Department for including a requirement to provide such overview to 
parents of each student enrolled in the LEA by either mail or email. 
However, some commenters asked for clarification of the proposed 
dissemination requirement. In addition, one commenter expressed 
opposition to what the commenter perceived as a requirement to provide 
parents with hard copies of the LEA report card overview for each 
school. Another commenter opposed the requirement to disseminate the 
LEA report card overview to parents of each enrolled student in each 
school via either mail or email, asserting that this requirement 
extends beyond what section 1111(h)(2)(B)(iii) of the ESEA, as amended 
by the ESSA, requires.
    Discussion: We appreciate support for the requirement in Sec.  
200.31(d)(3)(i) to disseminate the LEA overview section for each school 
served by the LEA directly to parents. This provision offers regular 
mail and email as examples of how this requirement could be met. Hard 
copy dissemination is not required. As suggested by one commenter, 
methods such as providing the overview at parent-teacher conferences, 
at parent nights, or with students to take home would also be 
sufficient to meet this requirement.
    Regardless of the method selected for providing this information to 
parents,

[[Page 86172]]

we believe that, consistent with the dissemination and accessibility 
requirements under section 1111(h)(2)(A) and (B)(iii) of the ESEA, as 
amended by the ESSA, key information about school performance must 
reach parents directly and in a timely fashion so that they have 
relevant information to work effectively with educators and local 
school officials during the school year. Moreover, as discussed 
previously in the discussion of Cross-Cutting Issues, the Department 
has rulemaking authority under section 410 of GEPA, section 414 of the 
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA. 
Given that rulemaking authority and that these regulations fall within 
the scope of section 1111(h) of the ESEA, as amended by the ESSA, 
consistent with section 1111(e), it is not necessary for the statute to 
specifically authorize the Secretary to issue a particular regulatory 
provision.
    Changes: We have revised Sec.  200.31(d)(3)(i) to clarify that LEAs 
can disseminate the LEA report card overview for each school served by 
the LEA directly to parents by means such as email, mail, or other 
direct means of distribution.
Report Card Dissemination Timeline Generally
    Comments: Several commenters expressed support for the annual 
December 31 deadline for States and LEAs to disseminate report cards 
under Sec. Sec.  200.30(e) and 200.31(e), suggesting that an annual 
deadline would encourage States and LEAs to provide more timely 
information to parents and stakeholders. Many commenters opposed the 
annual deadline because of concerns related to additional 
administrative burden that would be caused by overlapping report card 
dissemination and Department reporting timelines. These commenters 
offered a number of alternative proposals, including the removal of the 
deadline for dissemination of report cards, an alternate deadline of 
March 31, and a State-determined deadline that would be included in a 
State consolidated plan. Some commenters suggested maintaining the 
December 31 deadline, but also allowing States and LEAs to update 
report cards after December 31 with data unavailable on December 31.
    Some commenters also claimed that the ESEA, as amended by the ESSA, 
does not authorize the Department to require a specific deadline for 
dissemination of State and LEA report cards. These commenters argued 
that December 31 is an arbitrary reporting deadline not found in 
statute.
    A few commenters cited challenges meeting the deadline specifically 
for reporting graduation rates, per pupil expenditures, and 
postsecondary enrollment. Responses to those comments are provided 
below in separate comment summaries specific to these data elements.
    Discussion: We believe that timely report card dissemination, when 
combined with the report card overview section requirements in 
Sec. Sec.  200.30 and 200.31, will help ensure parents and the public 
can more effectively access and use State-, LEA-, and school-level data 
to help address achievement, opportunity, and equity gaps during the 
school year.
    We acknowledge that the newly required report card elements under 
the ESEA, as amended by the ESSA, may, initially, be more difficult for 
States and LEAs to implement. For this reason, Sec. Sec.  200.30 and 
200.31 include a one-time, one-year extension for those reporting 
elements. Although we decline to extend the general report card 
dissemination deadline, as discussed below, we have revised Sec. Sec.  
200.30(e) and 200.31(e) to permit States and LEAs to delay inclusion of 
data on per-pupil expenditures on annual State and LEA report cards 
until no later than June 30 following the December 31 deadline, 
provided that the report cards otherwise meet the December 31 
dissemination deadline and include a description of when per-pupil 
expenditure data will be made available. We note that specific comments 
related to the timeline for reporting graduation rates, per pupil 
expenditures, and postsecondary enrollment are discussed more fully 
below.
    In response to commenters who questioned our authority in this 
area, as discussed previously in the discussion of Cross-Cutting 
Issues, the Department has rulemaking authority under section 410 of 
GEPA, section 414 of the DEOA, and the section 1601(a) of the ESEA, as 
amended by the ESSA. Given that rulemaking authority and given that 
these regulations fall within the scope of title I, part A of the 
statute, consistent with section 1111(e), it is not necessary for the 
statute to specifically authorize the Secretary to issue a particular 
regulatory provision. The Department believes that December 31 provides 
States with sufficient time to report on the required data elements, 
while maintaining the goal of timeliness such that parents, teacher, 
principals, and other stakeholders can consider the information in 
helping to focus school improvement efforts. The December 31 date is 
purposefully chosen to balance the needs of States and LEAs in ensuring 
accurate data while providing such data in as timely a manner as 
possible.
    Changes: None.
Graduation Rates Reporting Timeline
    Comments: Several commenters opposed the December 31 deadline for 
reporting prior year adjusted cohort graduation rates on State and LEA 
report cards. Commenters cited several reasons for their opposition. 
Some commented that it is an unreasonable timeline because of the 
inclusion of summer graduates, and because States use the October 1 
enrollment count to determine whether students have dropped out. Others 
indicated a preference for continuing to allow States to lag graduation 
rates for report card purposes. One commenter suggested that to report 
prior year graduation rate data on the report card, it would be 
necessary to move the deadline to March 31 or later every year. One 
commenter noted that the deadline would require system changes that 
would be difficult or impossible to perform without significant 
additional resources.
    Discussion: We believe that it is important that graduation rate 
data is as timely as possible to give stakeholders, including parents, 
access to information that is still relevant for their decision making 
and to accurately describe the success of a school in the most recent 
school year. We understand that some State processes to review and 
audit graduation rate data are on a timeline that does not currently 
allow for a December release of graduation rate data and this provision 
will require some States to adapt their systems to meet the December 31 
timeline. However, we do not agree with commenters that indicated that 
releasing prior year graduation rate data by December 31 is 
unreasonable. By December of 2018, States will have had seven years to 
refine their process for producing adjusted cohort graduation rate data 
(since the requirements went into effect in 2008 for reporting on the 
2010-11 school year). Even with the inclusion of summer graduates, 
States should have sufficient time to review and release their data 
without the need for significant additional resources.
    We also disagree with commenters suggesting that a State should be 
permitted to lag its graduation rate data. Data are most useful and 
meaningful when they represent the most recent year. If a State reports 
lagged data in 2018, then it would be reporting 2016-17 graduation 
rates in December of the 2018-19 school year, meaning that the data 
available to parents would be a

[[Page 86173]]

year and a half old. This delay will have an adverse impact on the 
utility of the data for decision making and transparency, which is one 
of the primary purposes of making timely data available on State and 
LEA report cards.
    Changes: None.
Per-Pupil Expenditures Reporting Timeline--Annual Reporting
    Comments: Many commenters requested that, for reporting per-pupil 
expenditures under proposed Sec.  200.35, the Department allow 
additional flexibility beyond the one-time, one-year extension a State 
may request under proposed Sec. Sec.  200.30(e)(2) and 200.31(e)(2) if 
the State or its LEAs cannot meet the December 31, 2018, deadline for 
reporting newly requested information, such as per-pupil expenditures, 
on report cards. These commenters stated that reporting per-pupil 
expenditures annually by December 31 is an unreasonable timeline 
because of possible auditor shortages, inconsistencies with single 
audit requirements for Federal grantees, incompatible LEA expenditure 
reporting timelines, which in some cases are established in State law, 
and the increased likelihood of inaccurate data production if States 
must publish report cards with per-pupil expenditure data shortly after 
receiving unverified LEA expenditure reports.
    A majority of these commenters requested that we change the annual 
per-pupil expenditure reporting deadline to June 30 annually. Other 
commenters suggested extending the deadline to March 31, while some 
recommended using a State-determined date for publishing per-pupil 
expenditure data on report cards. One commenter supported the December 
31 annual deadline for per-pupil expenditures and two additional 
commenters generally supported the December 31 annual deadline for 
disseminating report cards, although they did not specifically mention 
per-pupil expenditures.
    Discussion: We agree with commenters that States and LEAs should 
report per-pupil expenditure data that is accurate, has been thoroughly 
reviewed, and clearly reflects how resources are allocated in schools. 
We also agree with commenters that an annual reporting deadline of June 
30 would provide the appropriate amount of time for States and LEAs to 
ensure high-quality data is publicly available.
    Therefore, we have added new Sec. Sec.  200.30(e)(2) and 
200.31(e)(2), which permit a State or LEA that is unable to include 
per-pupil expenditures on report cards by the December 31 deadline to 
update its report card with such data no later than the following June 
30. Additionally, the Department will provide technical assistance and 
support to States and LEAs in implementing the per-pupil expenditure 
reporting requirement.
    Changes: We have revised Sec. Sec.  200.30(e) and 200.31(e) to 
clarify when newly required information must be included on State and 
LEA report cards and to permit States and LEAs to delay inclusion of 
data on per-pupil expenditures on annual State and LEA report cards 
until no later than June 30, provided that the report cards otherwise 
meet the December 31 dissemination deadline and include a brief 
description of when per-pupil expenditure data will be made available.
Per-Pupil Expenditures Reporting Timeline--First Time Reporting of 
These Data
    Comments: Several commenters noted that some State and LEA data 
collection systems may be unable to collect and report school year 
2017-2018 per-pupil expenditure data. Some commenters indicated that 
SEAs have invested in sophisticated data systems that focus on student 
achievement over the past few years, but have not invested in 
comparable fiscal tracking systems. Commenters also stated that 
maintaining the statutory implementation timelines would mean fewer SEA 
resources could be devoted to the development and implementation of new 
accountability systems. These commenters requested that the Department 
allow flexibility for States and LEAs that do not have the capacity to 
implement the per-pupil expenditure reporting requirement by the 
December 31, 2018, deadline proposed in the regulations.
    Discussion: To accommodate potential challenges in implementing new 
report card requirements, States and their LEAs may request a one-time, 
one-year extension to build technical capacity, where necessary. We 
believe that this flexibility, in addition to the option to defer 
annual reporting of per-pupil expenditures from December 31, 2018, to 
the following June 30, provides States a sufficient amount of time for 
State fiscal collection and reporting systems to be aligned with 
statutory and regulatory requirements. As a result of this additional 
flexibility, if a State is unable to report per-pupil expenditures in 
school year 2017-2018 by June 30, 2019, and is granted a one-time, one-
year extension their plan and timeline would outline how the State will 
include school year 2018-2019 per-pupil expenditure information on 
State and local report cards by June 30, 2020.
    Changes: None.
Postsecondary Enrollment Reporting Timeline
    Comments: Some commenters expressed concerns with timelines for 
postsecondary enrollment reporting. Two commenters indicated that due 
to processing time or collection timelines, States may not be able to 
report postsecondary data on the immediately preceding school year by 
December 31. One commenter provided data that indicated that seven 
percent of all students and 11 percent of low income, high minority 
students would not be captured in the calculation if data on the 
immediately preceding school year are required by December 31. Instead, 
commenters recommended that States be allowed to lag their 
postsecondary enrollment data. One commenter indicated that the 
requirement to begin reporting in 2017 is too ambitious and suggested 
that States establish their own reporting timeline following 
consultation with stakeholders. Another commenter recommended that we 
allow for a delay between graduation and postsecondary actions for 
reporting this metric if the student was unable to enroll due to health 
problems or some other circumstance.
    Discussion: We appreciate commenters that noted the challenges of 
reporting data on the immediately preceding school year by December 31 
due to collection and processing timelines. While the statute specifies 
that the postsecondary enrollment metric must be defined in such a way 
that it captures students who enrolled in the first academic year that 
follows their graduation (or the immediately following academic year), 
the Department does not believe that the language implies that States 
are expected to include the data representing the graduating class from 
the immediately preceding school year on their report cards. We 
recognize that the academic year could include students that enroll in 
the fall, spring, or summer following their graduation from high 
school. Since report cards are due before the completion of the full 
academic year, it would not be possible for States to include complete 
postsecondary data on their report cards. As such, the Department's 
expectation is that postsecondary enrollment will be lagged (i.e., the 
report card produced in December of 2018 will contain data on the 
graduating class from the 2016-17 school year instead of the 2017-18 
school year). While we recognize that reporting on

[[Page 86174]]

this new metric by the time report cards for the 2017-2018 school year 
must be disseminated may be challenging for some States and LEAs, we 
note that under Sec. Sec.  200.30(e)(2) and 200.31(e)(2) a State may 
request a one-time, one-year extension for reporting on some or all of 
the new information, including postsecondary enrollment data, that must 
be included on State and LEA report cards.
    We also recognize that there are circumstances that prevent 
students from immediately enrolling in programs of postsecondary 
education, but the time frame in which students can be included in this 
metric is also in the statute, which specifies that it must be in the 
first academic year that follows the student's graduation. However, we 
believe that the first academic year can include students that first 
enroll in the fall, spring, or summer, which allows for the inclusions 
of students that may be unable to enroll by the fall.
    Changes: None.
Additional Statutory Subgroups Generally
    Comments: Some commenters submitted general comments related to 
three new subgroups on which States must disaggregate certain 
information on report cards as required under section 1111(h)(1)(C)(ii) 
of the ESEA, as amended by the ESSA: Children who are homeless, 
children in foster care, and children with parents who are members of 
the Armed Forces. A few commenters indicated their support for the 
definitions included in the regulations, which would require States to 
use definitions consistent with other Federal laws for these subgroups 
to ensure consistency in reporting across States. Some commenters noted 
that reporting data on these new subgroups would create privacy 
concerns or other sensitive issues, since there will be small numbers 
of students in each group, particularly at the LEA and school levels.
    Discussion: We appreciate comments supporting the definitions for 
the new subgroups required under the ESEA, as amended by the ESSA. We 
believe that these definitions will not only help ensure consistency 
across States but also align with definitions currently used for other 
programs supporting these populations, which will help our 
understanding of the outcomes of these students across programs. We 
agree with commenters that these populations may be small and that it 
is important to protect the privacy of small subgroups of students. In 
this regard, section 1111(i) of the ESEA, as amended by the ESSA, 
clearly addresses privacy of student data by requiring data to be 
collected and disseminated in a manner that protects the privacy of 
individual students, consistent with section 444 of GEPA (commonly 
known as the Family Educational Rights and Privacy Act (FERPA)). 
Section 1111(i) further states that disaggregation shall not be 
required if the n-size is small enough to reveal personally 
identifiable information or information that is not statistically 
sound. The Department has reinforced this requirement by including it 
in Sec. Sec.  200.30(f)(2) and 200.31(f) of the regulations.
    Changes: None.
Status as a Child in Foster Care
    Comments: Some commenters noted that some States use a more 
expansive definition of children in foster care, which includes not 
just children living in 24-hour substitute care, but also children who 
may not yet have been removed from their homes but for whom the Title 
IV-E agency has placement responsibility. They requested that the 
requirements allow a State with an expanded definition to include these 
students in its status as a child in foster care subgroup.
    Discussion: We do not agree with the recommendation that a State 
with an expanded definition of students in foster care should be 
permitted to use this definition for the purposes of reporting on this 
subgroup in title I report cards. Children who are placed in foster 
care and children who are allowed to remain at home under State custody 
represent two distinct populations; thus we believe it is important to 
preserve the subgroup being reported as those students who are placed 
in foster care. We believe that requiring disaggregation for the 
students placed in foster care will help States, State child welfare 
agencies, and other stakeholders gain a better understanding of the 
educational outcomes of a highly mobile population and the impact that 
being removed from home has on a child's ability to learn. As such, we 
believe that it is important to collect data only on those children who 
are placed in traditional out-of-home foster care. These data will be 
most useful to stakeholders if all children are reported using the same 
definition of children in foster care, and using an existing definition 
is the cleanest approach to implementing this new requirement. Further, 
this definition is consistent with the definition used in the non-
regulatory guidance that we issued jointly with the Department of 
Health and Human Services, ``Ensuring Educational Stability for 
Children in Foster Care'' (Children in Foster Care Guidance) which 
helps to ensure consistency across program requirements. The Foster 
Care Guidance can be found at: http://www2.ed.gov/policy/elsec/leg/essa/edhhsfostercarenonregulatorguide.pdf.
    Changes: None.
Status as a Military-Connected Student
    Comments: Several commenters supported the requirement in proposed 
Sec.  200.30 to report academic results for students with a parent who 
is a member of the Armed Forces on active duty. Several commenters 
suggested proposed Sec.  200.30 should also require identifiers for 
students with parents serving in the Reserve components of the military 
services or full or part-time National Guard. They argued that 
regardless of the specific military connection, parental deployment 
impacts children in the same manner. Two commenters suggested the 
identifier should also be extended to military-connected students who 
are eligible for special education services under the IDEA.
    Two commenters requested the Department expand the definition of 
parent to include caretakers such as legal guardians, custodians, 
State-determined definitions of the legal guardians and custodians, and 
stepparents. These commenters also requested the Department specify at 
what time during the school year service by a military-connected parent 
is to be counted for purposes of identification.
    One commenter asked the Department to explain the definition of all 
active duty and whether it includes deployed military parents only or 
also full-time military who are not deployed. One commenter asked why 
Congress included this identifier under the ESEA, as amended by the 
ESSA, and if there is evidence of delayed academic progress for 
children of parents in the military. One commenter argued the military-
connected identifier will result in an unlawful violation of privacy.
    One commenter requested that the Impact Aid regulatory requirements 
and these regulations be aligned, where possible, to limit 
administrative burden for LEAs, and that the Department gather feedback 
from LEAs that educate a significant number of military-connected 
students to ensure effective implementation of the new requirement. One 
commenter requested that the military-connected identifier be aligned 
with the reporting requirements under 20 U.S.C. 7703 (i.e., the Impact 
Aid program).
    Discussion: We agree with commenters that students with parents 
serving full-time in the National Guard face the same challenges as 
students

[[Page 86175]]

with parents on active duty in the Armed Forces. We also recognize 
that, as part of the process for developing proposed assessment 
regulations under title I, part A, the negotiated rulemaking committee 
reached consensus on regulations in which the issue of disaggregating 
achievement data for students with parents on active duty in the Armed 
Forces or on full-time National Guard duty is addressed. The negotiated 
rulemaking committee, relying on the same rationale as commenters, 
recommended that the Department require that State assessment systems 
be able to disaggregate assessment results for military-connected 
students to include those with parents on full-time National Guard 
duty. This recommendation is reflected in the Department's proposed 
assessment regulations, which require that State assessment systems 
enable results to be disaggregated within each State, LEA, and school 
by students with a parent who is a member of the Armed Forces on active 
duty or serves on full-time National Guard duty, where ``armed 
forces,'' ``active duty,'' and ``full-time National Guard duty'' have 
the same meanings given them in 10 U.S.C. 101(a)(4), 101(d)(1), and 
101(d)(5). Additionally, because section 1111(h)(1)(C)(ii) of the ESEA, 
as amended by the ESSA, (which we have clarified in Sec.  
200.30(f)(iv)) cross-references the statutory definition of ``full-time 
National Guard duty'' in 10 U.S.C. 101(d)(5), it is unclear if Congress 
intended to extend the military connected identifier to include student 
with parents on ``full-time National Guard duty.'' Given these 
considerations, the Department agrees with commenters that in 
disaggregating information on student achievement on the State's 
academic assessments based a student's military-connected status, 
States and LEAs should be required to include students with a parent 
who is a member of the Armed Forces on active duty as well as students 
with a parent who serves on full-time National Guard duty in the 
subgroup of students with a parent who is a member of the Armed Forces 
on active duty.
    We recognize the importance of service in the Reserve components of 
the military services and part-time National Guard. We note, however, 
that the statute focuses on full-time and active duty service in the 
military. As such, the Department declines to further extend the 
requirement regarding disaggregation by military-connected status.
    We appreciate requests for additional clarification related to 
legal guardian status and when service by a military connected parent 
are to be counted for purposes of identification, but believes these 
questions are best addressed in non-regulatory guidance. We note 
though, that section 8101(38) defines a parent to include a legal 
guardian. With respect to the meaning of active duty, the term is 
clearly defined in the Sec.  200.30(f)(iv)(B) consistent with the 
statutory definition in 10 U.S.C. 101(d)(1) and, as a result, the 
Department does not believe additional clarification is needed. 
However, the Department will consider providing additional information 
regarding this term in non-regulatory guidance.
    The Department is unable to provide additional clarity related to 
the intent of Congress in requiring States and LEAs to disaggregate 
student achievement based on military-connected status. Nor is the 
Department able to provide evidence of delayed academic progress for 
children of parents in the military, primarily because the requirement 
to track academic performance of this subgroup of students did not 
exist prior to the enactment of the ESSA. The Department respects the 
concerns a commenter raised about student privacy, particularly of 
military-connected students, but is comforted by strong privacy 
protections under the ESEA, as amended by the ESSA, FERPA, and Sec.  
200.30, which it expects will be faithfully implemented by States and 
LEAs.
    Although the Department declines to require States and LEAs to 
further disaggregate the military-connected student subgroup to 
distinguish between military connected students who utilize special 
education services under the IDEA and those that do not, the Department 
encourages State and LEAs to include reporting on additional subgroups, 
as appropriate. Further, we remind commenters that under section 
1111(g)(2)(N) of the ESEA, as amended by the ESSA, States are able to 
provide cross-tabulated information by additional subgroups beyond the 
minimum requirements, which include major racial and ethnic group, 
gender, English proficiency status, and children with or without 
disabilities.
    While the Department seeks to create consistency across program 
requirements where possible, there is a misalignment of military-
connected statutory definitions between 20 U.S.C. 7703 (i.e., the 
Impact Aid program) and definitions under the ESEA that reference 10 
U.S.C. 101. Under Impact Aid, students are identified if they have a 
parent on active duty in the uniformed services (as defined in 37 
U.S.C. 101) that do or do not reside on Federal property, while title I 
of the ESEA, as amended by the ESSA, references definitions of member 
of the Armed Forces on active duty or who serves on full-time National 
Guard duty (as defined in 10 U.S.C. 101). Further, the procedures for 
counting military students under the Impact Aid statute are more 
specific than military subgroup reporting requirements under the ESEA, 
as amended by the ESSA. Lastly, the Department will take into 
consideration the request to gather feedback from LEAs that educate a 
significant number of military-connected students and encourages SEAs 
to complete the same type of outreach as part of their required 
consolidated State plan consultation activities.
    Changes: We have revised Sec.  200.30(f)(iv) to clarify that, for 
purposes of reporting data on State and LEA report cards by military-
connected status, a parent who is a member of the Armed Forces on 
active duty includes a parent on full-time National Guard duty. In so 
doing, we have further defined ``full-time National Guard duty'' 
consistent with 10 U.S.C. 101(d)(5). In addition, we made conforming 
edits in Sec.  200.33(a)(3)(ii)(F).

Section 200.30 Annual State Report Card

Demographic and Achievement Data for Charter School Students by Charter 
School Authorizer
    Comments: Many commenters supported the proposed requirement in 
Sec.  200.30(a)(2)(ii) that State report cards include certain 
information for each authorized public chartering agency in the State, 
explaining that reporting this information would increase transparency 
and accountability for charter school authorizers. Other commenters, 
however, opposed this requirement, including some who suggested 
striking the requirement. Some commenters asserted the Department lacks 
the authority to require this information to be included on report 
cards because the statute does not require it. Other commenters 
indicated that it would be complicated and burdensome for States to 
identify the required comparison group, and that this complexity could 
undermine the goal of transparency. Some commenters suggested that the 
Department remove the comparison group component of the provisions and 
instead require States to report solely on the demographic composition 
and achievement of students in charter schools organized by charter 
authorizer.
    Discussion: We appreciate the support for this provision from some 
commenters. With respect to the

[[Page 86176]]

Department's authority to issue this requirement, as discussed 
previously in the discussion of Cross-Cutting Issues, the Department 
has rulemaking authority under section 410 of GEPA, section 414 of the 
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA. 
Given that rulemaking authority, it is not necessary for the statute to 
specifically authorize the Secretary to issue a particular regulatory 
provision. Moreover, the Department believes that transparency 
regarding the demographic composition and student achievement of 
charter school students, as compared to that of the relevant LEA or 
LEAs, falls within the scope of title I, part A of the statute, 
consistent with section 1111(e) and is necessary to advance the overall 
purpose of title I, which is ``to provide all children significant 
opportunity to receive a fair, equitable, and high quality education 
and to close educational achievement gaps.'' We note that providing 
this information by authorizer is particularly important given that 
authorizers generally have a significant oversight role with respect to 
the charter schools they authorize, and parents and other stakeholders 
may not be able to easily access this information by authorizer absent 
this requirement.
    With respect to the comments regarding the potential difficulties 
associated with identifying an appropriate comparison group, the 
regulations provide flexibility for a State to determine the 
appropriate comparison, which may include the LEA or LEAs from which 
the charter school draws a significant portion of its students or a 
more specific, State-determined geographic community within an LEA. To 
ensure they are able to determine the appropriate comparison, we 
encourage States to consult with the charter school community, 
including authorized public chartering agencies. Further, we believe 
the benefits that will result from this reporting requirement in terms 
of increased transparency and accountability for this growing segment 
of public schools outweigh any burden it might impose on a State.
    Changes: None.

Section 200.32 Description and Results of a State's Accountability 
System

General Comments
    Comments: A few commenters expressed support for the requirements 
in proposed Sec.  200.32 that State and LEA report cards include 
information on and results from a States' accountability system, 
including the requirement in proposed Sec.  200.32(c)(2) and (c)(3) 
that LEA report cards include the reason that led to a school's 
identification as a comprehensive or targeted support and improvement 
school. One commenter noted that requiring the reason for 
identification will help LEA and school staff target school needs.
    However, some commenters opposed the requirement that State and LEA 
report cards include a school's identification as a comprehensive or 
targeted support and improvement school and the reason that led to such 
identification, suggesting that these particular requirements extend 
beyond what sections 1111(h)(1)(C) and (h)(2)(C) of the ESEA, as 
amended by the ESSA, require. Another commenter suggested that proposed 
Sec.  200.32(c)(2) and (c)(3) be expanded to require that LEA report 
cards include additional information regarding a school's 
identification as a comprehensive or targeted support and improvement 
school, specifically ``any missed targets.'' A few commenters requested 
that State and LEA report cards include additional information related 
to a State's minimum n-size for accountability, such as the number and 
percentage of all students and students in each subgroup for whose 
results schools in the LEA are not held accountable in the State's 
system of meaningful differentiation.
    Two commenters supported the option in proposed Sec.  200.32(b) for 
State and LEA report cards to provide the Web address or URL of, or a 
direct link to, the State's State plan or other location on the SEA's 
Web site where one can access the required description of a State's 
accountability system. Finally, one commenter requested that the 
Department replace the term ``rating'' with the term ``determination.''
    Discussion: We appreciate the support of some commenters for 
various provisions in Sec.  200.32. Sections 1111(h)(1)(C)(i)(V) and 
(h)(2)(C) of the ESEA, as amended by the ESSA, require that State and 
LEA report cards include the names of all schools identified by the 
State for comprehensive support and improvement or implementing 
targeted support and improvement plans. Further, we believe that, in 
conjunction with the identification of a school as a comprehensive or 
targeted support and improvement school, it is important for State and 
LEA report cards to indicate the reason that led to a school's 
identification in order to help focus school, parent, and community 
efforts to improve teaching and learning for all students and 
particularly for historically underperforming subgroups of students. As 
discussed previously in the discussion of Cross-Cutting Issues, the 
Department has rulemaking authority under section 410 of GEPA, section 
414 of the DEOA, and the section 1601(a) of the ESEA, as amended by the 
ESSA. Given that rulemaking authority and that these regulations fall 
squarely within the scope of section 1111(h) of the ESEA, as amended by 
the ESSA, consistent with section 1111(e), it is not necessary for the 
statute to specifically authorize the Secretary to issue a particular 
regulatory provision.
    We decline to require additional information on State and LEA 
report cards related specifically to schools identified as 
comprehensive or targeted support and improvement or implications of a 
State's minimum n-size beyond what section 1111(h)(1)(C)(i) of the 
ESEA, as amended by the ESSA, and Sec.  200.32 require. However, States 
and LEAs may include any additional information that they believe will 
provide parents and other stakeholders with important information about 
school performance and progress. Further, with respect to one 
commenter's request for additional information regarding a State's 
minimum n-size, we note that Sec.  299.17(b)(4) requires States to 
provide additional detail related to their minimum n-size in either 
their consolidated State plan or individual title I plan. Thus, because 
Sec.  299.13(f) requires the State plan to be published on a State's 
Web site, such information will be publicly available.
    We concur with the commenters who supported the option to allow 
States and LEAs to provide the Web address or URL of, or a direct link 
to, the State's State plan or other location on the State's Web site 
where one can access the description of a State's accountability system 
required under section 1111(h)(1)(C)(i), (h)(2) of the ESEA, as amended 
by the ESSA, and Sec.  200.32. Given the amount of information on State 
and LEA report cards, we recognize that a detailed description of some 
of the accountability system elements may not add significantly to 
parents' or other stakeholders' understanding of school performance and 
progress and thus believe it is appropriate to allow the State or LEA 
to provide a Web address for, or direct link to, the State plan or 
another location on the SEA's Web site for detailed information on the 
accountability system. We do encourage States and LEAs, in developing 
report cards, to consider the amount of information needed to help 
parents and other stakeholders engage in and understand the State 
accountability system. Finally, the Department is

[[Page 86177]]

replacing the term ``rating'' with ``determination'' for the same 
reasons as we discussed previously in Sec.  200.18.
    Changes: We have removed the term summative ``rating'' in final 
Sec.  200.32(c)(4) and replaced it with ``determination.''.

Section 200.33 Calculations for Reporting on Student Achievement and 
Progress Toward Meeting Long-Term Goals

Reporting on Achievement
    Comments: Two commenters supported the requirement in Sec.  
200.33(a)(3)(iii) for calculating and reporting the results of students 
at each level of achievement, while others opposed it. A few commenters 
requested that States be able to report information on student 
achievement using something other than percent proficient, including 
scale scores or a performance index. Other commenters suggested that it 
could be confusing to provide two different calculations for percent 
proficient, with some commenters elaborating that reporting both 
percentage of students tested and not tested in addition to proficiency 
based on valid test scores would be sufficient to reach appropriate 
conclusions regarding State, LEA, and school achievement information. 
Finally, some commenters requested that the Department add a 
requirement that States either notify parents of students in schools 
with differences in proficiency rates or explain on State and LEA 
report cards the difference between the two different proficiency 
calculations.
    Discussion: We appreciate commenters who supported the requirement 
in Sec.  200.33(a)(3)(iii). Section 1111(c)(4)(E)(ii) of the ESEA, as 
amended by the ESSA, requires that States measure, calculate, and 
report on the Academic Achievement indicator under section 
1111(c)(4)(B)(i), in a manner in which the denominator includes the 
greater of either 95 percent of all such students, or 95 percent of all 
such students in the subgroup, as the case may be; or the number of 
students participating in the assessments. Thus, with respect to this 
indicator of a State's accountability system, a school's performance 
will be based on this calculation. Because States will use this 
calculation for accountability purposes, we believe it is important to 
provide States, LEAs, and schools with information on student 
achievement on the reading/language arts, mathematics, and science 
academic assessments described under section 1111(b)(2) that is based 
on this calculation. However, we also believe that it is important to 
provide information on student achievement based on the number of valid 
test scores, as that represents the achievement of students that 
actually took the assessment. Together, these two calculations will 
help ensure that parents, teachers, principals, and other key 
stakeholders have access to a more nuanced picture of State, LEA, and 
school performance on the assessments required under the ESEA, as 
amended by the ESSA.
    With respect to reporting on student achievement using a metric 
other than percent proficient, sections 1111(h)(1)(C)(xiv) and 
(h)(2)(C)(2)(iii) of the ESEA, as amended by the ESSA, provide for 
States and LEAs to include on report cards any additional information 
they believe will best provide parents, students, and other members of 
the public with information regarding the progress of each of the 
State's public elementary and secondary schools. This could include 
additional metrics of school, LEA, and State performance.
    Changes: None.
Reporting Overall and by Grade
    Comments: None.
    Discussion: We wish to clarify that, in addition to State and LEA 
report cards including the percentage of students performing at each 
level of achievement under section 1111(b)(1)(A) of the ESEA, as 
amended by the ESSA, on the academic assessments under section 
1111(b)(2) by grade, State and LEA report cards must include such 
information overall. In doing so, report cards will convey student 
achievement for all students at each grade-level tested and also for 
the State, LEA, and school as a whole. Thus, parents and other 
stakeholders will have a targeted, as well as more holistic, 
understanding of student achievement and be able to identify trends by 
grade and overall. Requiring reporting of these results overall is 
particularly important for LEA report cards that include information 
for each school served by the LEA, as small schools may not have enough 
students by grade in order to meet a State's minimum n-size for 
reporting but may have enough students overall by school.
    Changes: We have revised Sec.  200.33(a)(1) to require reporting 
overall and by grade.

Section 200.34 High School Graduation Rate

General
    Comments: A few commenters generally supported the requirements for 
calculating the four-year adjusted cohort graduation rate in proposed 
Sec.  200.34, while another commenter noted that they were little 
changed from the requirements under the previous regulations. One 
commenter objected to the four-year graduation rate because some 
students may need less time and some may need more time to graduate. 
Another commenter recommended attaching more value to a high school 
diploma.
    Discussion: We appreciate support from commenters for regulations 
supporting on the calculation and reporting of meaningful four-year 
cohort graduation rates, and agree that they are very similar to the 
previous regulations. One important change, however, is that States and 
LEAs now may include in the numerator of the calculation students with 
the most significant cognitive disabilities who were assessed using the 
alternate assessment aligned to alternate academic achievement 
standards and receive State-defined alternate diplomas. We believe that 
the four-year adjusted cohort rate is an appropriate measure because it 
reflects the typical amount of time required to obtain a high school 
diploma, but we note that the regulations permit States to implement an 
extended-year graduation rate. Finally, the significant role of 
graduation rates for high schools in statewide accountability systems 
demonstrates the high value attached to a high school diploma as an 
essential outcome for all students under the ESEA, as amended by the 
ESSA.
    Changes: None.
    Comments: A few commenters raised technical considerations related 
to the adjusted cohort graduation rate, including the need to 
accurately track students that move between schools, business rules 
that may be necessary to account for different types of diplomas or 
alternative schools, and the importance of defining a ninth-grade 
cohort early in the school year.
    Discussion: We believe that the requirements in the final 
regulations for calculating the adjusted cohort graduation rate, 
combined with State experience in implementing these requirements, 
generally provide both the guidance and flexibility that States need to 
address the technical concerns noted by the commenters. The adjusted 
cohort graduation rate accounts for many of the issues identified by 
commenters in its design. For example, as reflected in Sec.  200.34(b), 
LEAs and schools are required to track students throughout their time 
in the cohort. Moreover, to remove a student from a cohort, schools and 
LEAs must confirm in writing the basis for such removal. Additionally, 
Sec.  200.34(a)(2), consistent

[[Page 86178]]

with section 8101(25)(A)(i) and (23)(A)(i) of the ESEA, as amended by 
the ESSA, includes language that will ensure that the cohort is formed 
early enough in the year that it can account for most attrition, since 
it requires that a new cohort of students is formed no later than the 
date by which student membership data is collected by States for 
submission to NCES, which is typically near October 1. States should 
establish clear business rules and internal controls so that graduation 
rates information is tracked accurately at the school, LEA, and State 
levels.
    Changes: None.
    Comments: Some commenters suggested alternative metrics to replace 
or to report in addition to the adjusted cohort graduation rate, such 
as a completion indicator for students who finish high school using 
alternate pathways and timelines or a one-year graduation rate for 
certain schools designed to reengage students who are over age. Another 
commenter asserted that States should be permitted to select or define 
their own graduation rate measure.
    Discussion: The regulations are consistent with section 
1111(h)(1)(C)(iii)(II) and (h)(2)(C) of the ESEA, as amended by the 
ESSA, which require that a State and its LEAs calculate and report a 
four-year adjusted cohort graduation rate. A State may also calculate 
and report, at its discretion, one or more extended-year adjusted 
cohort graduation rates. Completer rates and other metrics that do not 
track students through their high school career mask critical 
information about student outcomes, such as students who drop out 
earlier in their high school career or students who take an extended 
period of time to graduate. While not required, States may include 
additional metrics that provide supplemental information about students 
completing high school through alternative routes or programs.
    Changes: None.
    Comments: One commenter requested clarification in the regulations 
about the inclusion of summer graduates in the four-year adjusted 
cohort graduation rate.
    Discussion: Section 8101(23) and (25) of the ESEA, as amended by 
the ESSA, provides for students to be included as graduates in the 
numerator if they earn a regular high school diploma, or State-defined 
alternate diploma for students with the most significant cognitive 
disabilities, before, during, or at the conclusion of their fourth year 
of high school or a summer session immediately following the fourth 
year of high school. This permits, but does not require, a State to 
include summer graduates. If a State chooses not to include summer 
graduates in the numerator, those students still must be included in 
the denominator if they are part of the original cohort for that class.
    Changes: None.
Regular High School Diploma Definition
    Comments: Many commenters provided input on the definition of the 
term ``regular high school diploma'' under proposed Sec.  200.34(c)(2), 
particularly insofar as the definition provides that it may not include 
a diploma based on meeting IEP goals that are not fully aligned with 
the State's grade-level academic content standards. Although one 
commenter supported this language, the remaining commenters opposed 
some or all of the language around the IEP diploma. Some commenters 
asserted that the Department should not add to the plain language of 
the statute, but the majority of commenters opposed the language 
because of the potential unintended consequences of allowing an IEP 
diploma that is based on grade-level standards to be treated as 
equivalent to a regular high school diploma.
    Discussion: We agree with the majority of commenters that a regular 
high school diploma should not include a diploma based on meeting IEP 
goals, regardless of whether those goals are fully aligned with a 
State's grade-level academic content standards. Under 34 CFR 
300.320(a)(2), each child's IEP must include a statement of measurable 
annual goals designed to meet the child's needs that result from the 
child's disability to enable the child to be involved and make progress 
in the general education curriculum and to meet each of the child's 
other educational needs that result from the child's disability. 
Although the use of standards-based IEPs has greatly expanded, IEP 
goals cannot serve as a proxy for determining whether a student has met 
a State's grade-level academic content standards. Therefore, a diploma 
based on meeting IEP goals will not provide a sufficient basis for 
determining that the student has met a State's grade-level academic 
content standards; rather, it will only demonstrate that the student 
has attained his or her IEP goals during the annual period covered by 
the IEP. Therefore, a diploma based on attainment of IEP goals, 
regardless of whether the IEP goals are fully aligned with a State's 
grade-level content standards, should not be treated as a regular high 
school diploma, and we are revising the final regulations to clarify 
this point. Finally, as discussed previously in the section on Cross-
Cutting Issues, the Department's rulemaking authority under section 410 
of GEPA, section 414 of the DEOA, and section 1601(a) of the ESEA, as 
amended by the ESSA, allows it to issue regulatory provisions not 
specifically authorized by statute, and we appropriately exercise that 
authority here given that the regulations fall squarely within, and are 
reasonably necessary to ensure compliance with, section 1111(h) of the 
ESEA, as amended by the ESSA, consistent with section 1111(e).
    Changes: We have revised proposed Sec.  200.34(c)(2) to remove the 
language ``that are not fully aligned with the State's grade level 
academic content standards'' following ``such as a diploma based on 
meeting IEP goals.''
State-Defined Alternate Diplomas
    Comments: Some commenters supported proposed Sec.  
200.34(a)(1)(ii), which requires students receiving a State-defined 
alternate diploma to be counted in the numerator of the four-year 
adjusted cohort graduation rate. However, other commenters opposed the 
retroactive reporting requirements in proposed Sec.  200.34(e)(ii)(4) 
for students who take longer than 4 years to earn an alternate diploma. 
These commenters opposed the proposed method of including students with 
the most significant cognitive disabilities who earn a State-defined 
alternate diploma in the adjusted cohort graduation rate only through 
retroactive reporting. These commenters recommended revising the final 
regulations to allow students to be included in the year that they 
graduate (instead of tying them to their original cohort and including 
them retroactively once they graduate). Commenters also recommended 
requiring disaggregation of the number and percentage of students with 
disabilities reported in the adjusted cohort graduation rate by (1) 
students receiving a regular high school diploma and (2) students 
receiving a State-defined alternate diploma.
    Discussion: We appreciate the comments supporting the inclusion of 
students receiving a State-defined alternate diploma in graduation rate 
calculations. We also agree with commenters who recommended including 
such students in the four-year adjusted cohort graduation rate 
calculation in the year in which they graduate, while still ensuring 
that they are accounted for in a cohort, and are revising the final 
regulations accordingly. The final regulations will require a State to 
keep such a student in his or her original cohort until grade

[[Page 86179]]

12 and, at which time the IEP team can evaluate if the student is 
eligible and on track to receive the State-defined alternate diploma 
within the time period for which the State ensures the availability of 
FAPE. The final regulations ensure that a student removed from the 
cohort in grade 12 will be reassigned to the four-year graduation 
cohort of the year of exit, regardless of how the student exits. 
Additionally, the language allows for a meaningful way to include 
students with the most significant cognitive disabilities in extended-
year graduation rates, if such rates are adopted by the State, by 
including such students in the extended-year rates associated with 
their new cohort (i.e., in the subsequent years following their 
inclusion in the four-year graduation rate). Finally, the change allows 
for students with the most significant disabilities to be meaningfully 
included in measuring school and LEA performance under a State's 
accountability system.
    We decline to require States to disaggregate graduation rates for 
students with disabilities those receiving a regular high school 
diploma and the State-defined alternate diploma, in part because we 
believe minimum n-size requirements would limit meaningful reporting of 
students receiving the alternate diploma in most districts. While 
States have discretion to include such disaggregated graduation rate 
data for students with disabilities on their report cards, they must 
comply with applicable local, State, and Federal privacy protections.
    Changes: We have revised Sec.  200.34(e)(4) by removing the 
language that required States to retroactively update the adjusted 
cohort graduation rate annually for students with the most significant 
cognitive disabilities receiving the State-defined alternate diploma. 
We have also added Sec.  200.34(b)(5) regarding adjusting the cohort 
for students with the most significant cognitive disabilities who 
receive a State-defined alternate diploma.
    Comments: One commenter requested that the Department clearly state 
that a State-defined alternate diploma received by a student with the 
most significant cognitive disabilities should not be treated as a 
regular high school diploma for the purposes of determining the 
termination of services under IDEA.
    Discussion: Consistent with the definition of ``regular high school 
diploma'' in section 8101(43) of the ESEA, as amended by the ESSA, a 
regular high school diploma must be fully aligned with State standards, 
and may not be aligned with the alternate academic achievement 
standards described in section 1111(b)(1)(E) of the ESEA. We agree with 
commenters that graduation from high school with a State-defined 
alternate diploma does not terminate a student's entitlement to FAPE 
under IDEA, provided that the student continues to meet the definition 
of ``child with a disability'' in section 602(3) of the IDEA and is 
within the State's mandated age range for the provision of FAPE.
    Entitlement to FAPE under IDEA could last until an eligible 
student's 22nd birthday, depending on State law or practice. However, 
under 34 CFR 300.102(a)(3)(i) a State's obligation to make FAPE 
available to all children with disabilities does not apply with respect 
to children with disabilities who have graduated from high school with 
a regular high school diploma. However, Sec.  300.102(a)(3)(ii) 
clarifies that this exception does not apply to children with 
disabilities who have not graduated from high school with a regular 
high school diploma. Because a State-defined alternate diploma for 
students with the most significant cognitive disabilities does not 
align with the definition of a regular high school diploma, graduation 
from high school with such a diploma does not terminate the obligation 
of a State and its public agencies to make FAPE available until 
students awarded such a diploma are appropriately exited from special 
education and related services in accordance with Sec.  300.305(e)(1) 
of the IDEA Part B regulations or exceed the age of eligibility for the 
provision of FAPE under State law. Because the IDEA regulations already 
address this obligation, no further clarification in these final 
regulations is needed.
    Changes: None.
Extended-Year Graduation Rate
    Comments: Several commenters opposed the requirement in proposed 
Sec.  200.34(d) that would limit an extended-year graduation rate to 
seven years, and recommended that the Department change the proposed 
number of years from seven to eight years. Commenters argued that this 
more closely corresponds with the time period for which States are 
required to offer a FAPE under the IDEA. One commenter opposed any 
limitation on the grounds that a State should be allowed to include a 
student in an extended-year rate, regardless of how long it has taken 
the student to graduate. Another commenter did not specifically address 
the limitation, but opposed the requirement that four-year and 
extended-year graduation rates must be reported separately, asserting 
that it was not aligned with accountability provisions for alternative 
schools. Another commenter recommended that the Department provide 
guidance encouraging States to report extended-year graduation rates in 
order to capture students that typically take longer than four years to 
graduate.
    Discussion: The Department initially proposed to limit extended-
year graduation rates to seven years because it is consistent with the 
time period in which most States ensure the availability of FAPE and no 
State currently calculates an extended year rate longer than seven 
years. We acknowledge, however, that some States provide FAPE for a 
longer period. In light of such differences across States, the 
Department is removing the limitation on extended-year graduation 
rates.
    Although we are removing the limitation on extended-year rates, we 
nonetheless believe that most students not graduating after four years 
will graduate in five or six years. Further, students with the most 
significant cognitive disabilities receiving a State-defined alternate 
diploma within the time period in which most States ensure the 
availability of FAPE can be included in both the four-year and 
extended-year graduation rates. For these reasons, the Department 
encourages States to limit extended-year rates to five or six years in 
order to capture the most meaningful information about student 
graduation outcomes for use in reporting and accountability systems.
    With respect to the recommendation that States and LEAs not be 
required to report the four-year and extended-year rates separately, 
and that instead States and LEAs should be able to report only one, we 
note that section 1111(h)(1)(C)(iii)(II) of the ESEA, as amended by the 
ESSA, specifically requires reporting on four-year graduation rates 
and, if adopted by the State, extended-year graduation rates. If a 
State chooses to implement an extended-year graduation rate, such 
information is most useful if reported separately from the four-year 
rate so that stakeholders can see the differences in graduation rate 
outcomes in the additional years beyond the four-year rate. 
Consequently, the Department believes that it is important that those 
rates be reported separately.
    We appreciate suggestions from commenters about topics for 
potential guidance on this issue. Should we determine that further 
guidance is needed related to this issue, we will take these comments 
into consideration.
    Changes: The Department has revised Sec.  200.34(d)(2) to remove 
the

[[Page 86180]]

requirement that an extended-year graduation rate cannot be for a 
period longer than seven years.
Standard Criteria for Including Certain Subgroups
    Comments: Many commenters responded to the Department's directed 
question seeking input on whether to create standard criteria for 
including children with disabilities, English learners, children who 
are homeless, and children who are in foster care in their 
corresponding subgroups within the adjusted cohort graduation rate 
calculation. A number of commenters supported standardizing the 
criteria for including students within these subgroups in the 
graduation rate calculation. Commenters generally addressed only one or 
two of the subgroups identified in the question, and, together, the 
comments offered different recommendations for different subgroups 
(e.g., different recommendations for English Learners than students in 
foster care). A number of commenters submitted comments assuming the 
Department was suggesting standardizing all students in the directed 
question.
    Some commenters focused generally on standard criteria for all four 
subgroups identified in the directed question. Several of these 
commenters supported basing a student's inclusion in a subgroup on 
being part of that subgroup at any time during the cohort period. 
Several commenters supported creating standard criteria, but suggested 
either different criteria based on the specific characteristics of the 
subgroup, or getting input from stakeholders, such as States and 
advocates, about the appropriate criteria for each subgroup.
    Several commenters opposed requiring standard criteria, specifying 
that the decision should be left to States. Of these, two commenters 
included recommendations for the Department to consider if it decided 
to require standard criteria. One commenter recommended including 
students in the subgroup if they were part of that subgroup at any time 
during the cohort period. The other recommended that the Department 
consider current practices of States and align the requirements to the 
method used by a majority of States.
    Many commenters addressed children with disabilities specifically. 
The majority of commenters supporting standardization suggested 
including children with disabilities if (1) they were a member of the 
subgroup at graduation and (2) they had spent the majority of their 
time in high school in the subgroup. The rest of the supporting 
commenters suggested varied approaches for standardization (e.g., at 
any time, at the time of graduation).
    Some commenters addressed English learners specifically. One 
commenter requested special criteria and additional disaggregation for 
students who are English learners and have been part of Native American 
Language Schools and Programs for at least six years. Other commenters 
supported requiring standard criteria, but suggested different 
approaches for determining those criteria. Commenters suggested: Basing 
a student's membership in a cohort if they were part of that subgroup 
at any time during the cohort period; requiring standard criteria 
appropriate to the characteristics of the subgroups; and aligning the 
criteria with other definitions associated with English learners (e.g., 
aligning with long term English learners or including former English 
learners).
    Many other commenters addressed concerns related to students who 
are homeless and students who are in foster care specifically and 
supported requiring standard criteria. All commenters supporting 
standard criteria for these groups suggested basing a student's 
membership in a cohort on whether they were part of that subgroup at 
any time during the cohort period and emphasized that this is 
particularly important for these groups since they may move in and out 
of that subgroup multiple times while they are in school and point in 
time counts would underrepresent the population. A subset of these 
commenters suggested that graduation rates should be reported both for 
students that were part of that subgroup at any time during the cohort 
period and students who were part of that subgroup at the time of 
graduation. Commenters indicated that if only one rate for these groups 
was possible, their preference was for the former. One commenter 
requested additional clarity regarding the assignment of students to 
particular subgroups. The commenter requested clarity as to whether a 
student could be assigned to multiple subgroups (e.g., the English 
learner subgroup and the children with disabilities subgroup), or if a 
student could only be assigned to one. If the latter, the commenter 
requested information on which group would take precedence.
    Discussion: We agree that requiring standard criteria for the 
inclusion of specific subgroups in the graduation rate calculation will 
make the data more useful. One of the key reasons for requiring an 
adjusted cohort graduation rate is to ensure that all States use a 
consistent graduation rate calculation, which allows data to be 
compared across States. While differences in graduation rate 
requirements mean that there will continue to be some limitations to 
the comparability of the data, we believe that any step that improves 
the comparability of the data will improve the ability of parents and 
other stakeholders to use the data as intended. We note that this 
standard criteria is solely for the purpose of calculating and 
reporting on graduation rate data.
    We disagree with the recommended approach of those commenters that 
supported standardizing the criteria for how children with disabilities 
are included in the cohort graduation rate calculation. The commenters 
suggested including children with disabilities if (1) they were a 
member of the subgroup at graduation and (2) they had spent the 
majority of their time in high school in the subgroup. The Department 
is unaware of any State that currently uses this approach when 
including children with disabilities in the cohort. Moreover, the 
Department believes that States, LEAs, and schools should be able to 
count children with disabilities if such children remain in that 
subgroup throughout high school or if they successfully exit from 
special education services in high school, as the data represent the 
long-term effort by States, LEAs, and schools to serve these students. 
The Department is also concerned that following the suggested approach 
could encourage States to unnecessarily retain some higher functioning 
students with disabilities in special education services in order to 
count these students in the disability subgroup. Additionally, we note 
that, under Sec.  299.14(c)(5), each State must assure that it has 
policies and procedures in place regarding the appropriate 
identification of children with disabilities consistent with the child 
find evaluation requirements in section 612(a)(3) and (a)(7) of the 
IDEA. We feel confident that this will mitigate against the risk of 
students being inappropriately identified.
    In response to commenters indicating that a student should be 
included in the English learners subgroup for purposes of reporting the 
adjusted cohort graduation rate if he or she was part of that subgroup 
at any time during the cohort period, we are revising Sec.  
200.34(e)(2) to require this practice for the limited purpose of 
reporting the adjusted cohort graduation rate under the ESEA. As with 
students with disabilities, this approach under the ESEA recognizes the 
long-term effort by States, LEAs, and schools to serve these students 
even if they are not English learners at the time they graduate.

[[Page 86181]]

    We agree with commenters indicating that students who are homeless 
and students who are in foster care should be included in those 
subgroups for purposes of reporting the adjusted cohort graduation rate 
if they were part of the subgroup at any time during the cohort period. 
We agree that these students will move in and out of these subgroups 
depending on their current situation and that only capturing these 
students at the time of graduation would risk significantly 
underreporting these students.
    On balance, the Department believes that the final regulations will 
create more consistency in graduation rate reporting for specific 
subgroups, which is an important improvement to current reporting 
practices which have made it difficult to compare certain subgroups 
across States. We believe that the long term benefits of increasing the 
comparability across States outweigh the interruption of the 
longitudinal data and the one-time effort to change business rules. 
Further, it seems appropriate to use this opportunity to require this 
approach for subgroups newly required for purposes of reporting 
adjusted cohort graduation rates under the ESEA, as amended by the 
ESSA, (i.e., students who are homeless and students in foster care) to 
ensure that students in these groups are appropriately and consistently 
captured in graduation rates.
    We note that a number of commenters indicated that further 
disaggregation of certain subgroups would provide the most useful 
information for understanding student graduation outcomes. While we 
understand that this information may be useful, the statute includes a 
specific list of subgroups for which disaggregation is required. As 
such, the Department will not require further disaggregation; however, 
States and LEAs are free to add further information to their report 
cards if they believe that further detail will convey useful context 
for their stakeholders.
    Additionally, the Department notes that a commenter requested 
further clarification about subgroup inclusion. In this regard, we note 
that students can be included in multiple subgroups, and we expect that 
an individual student will be counted in any subgroup that applies to 
that student. For example, a student with a disability who is also an 
English learner would be counted in both subgroups.
    Changes: We have added Sec.  200.34(e)(2), which requires a State 
to include children with disabilities, English learners, children who 
are homeless, and children who are in foster care in the respective 
subgroup for the limited purpose of reporting the adjusted cohort 
graduation rate under the ESEA, if such students were identified as a 
member of the subgroup at any time during the cohort period.
Transfers to Prisons or Juvenile Facilities
    Comments: A number of commenters supported the Department's 
clarification related to cohort removal for students transferring to 
prison or juvenile facilities, and the requirement under proposed Sec.  
200.34(b)(3)(iii) that these students can be removed from the cohort 
only if they participate in a program that culminates in the award of a 
diploma aligned to the statutory requirements. These commenters also 
suggested revisions to the requirement, including revising it to align 
with the statute, which defines ``transferred out'' as having 
transferred to an educational program ``from which the student is 
expected to receive'' a regular high school diploma or State-defined 
alternate diploma, as opposed to the proposed regulation, which focused 
on a student's transfer to a program ``that culminates in the award 
of'' a regular or State-defined alternate high school diploma. Many 
commenters also requested that the Department clarify that a student 
can be removed from the cohort only if he or she has been adjudicated 
as delinquent, and one commenter further suggested that the student 
must also be enrolled in an educational program in a prison or juvenile 
facility for at least one year.
    Many commenters suggested further clarifying the requirement in a 
number of other ways, including by specifying that, to be removed from 
a sending school's cohort, a student must be ``meaningfully 
participating'' in an education program while in a prison or juvenile 
facility, that documentation of the transfer must include written 
confirmation of the student's enrollment in an educational program from 
which he or she can expect to receive a regular high school diploma, 
and that the provisions related to partial enrollment also apply to 
students in prison or juvenile facilities. A few commenters recommended 
adding a requirement to disaggregate graduation rate data for students 
who are in the juvenile justice system.
    Two commenters opposed the proposed requirement, indicating that 
States may have trouble complying because they may lack authority over 
juvenile facilities and students in those facilities. One commenter 
noted that it would not be possible to produce consistent data across 
States.
    Several commenters requested further guidance from the Department 
about responsibilities for educating students in juvenile facilities. 
Most of these commenters requested that the Department address the 
timing for transferring a student from the sending school, the process 
for transferring a student from a prison or juvenile facility back into 
a school, and requirements for oversight and accountability of schools 
in these facilities. One commenter requested further clarification on 
which LEA is responsible for a student that enters a prison or juvenile 
facility that does not award the applicable diploma types.
    Discussion: We appreciate the comments noting that certain proposed 
regulatory language differed from the statutory language, and agree 
that it is more appropriate to use the statutory language. We also 
agree with commenters who suggested that a student must be adjudicated 
as delinquent, and that it must be clear that the student will be 
enrolled in a program from which he or she can expect to receive a 
regular high school diploma or State-defined alternate diploma, before 
the student can be removed from the sending school's cohort. Students 
who are awaiting hearings and who have not yet been adjudicated as 
delinquent may end up in a different facility, may transfer to another 
school, or may be released and return to their sending school. As such, 
the result of the adjudication and the student's placement should be 
clear before the student is removed from the cohort.
    We also agree that a student should not be removed from a cohort 
unless the student will be in a facility long enough that he or she can 
expect to receive a regular high school diploma or, if applicable, a 
State-defined alternate diploma for students with the most significant 
cognitive disabilities from the facility. While the Department does not 
agree with comments suggesting that a student must remain in the 
facility for at least a year before being removed the sending school's 
cohort, the Department does believe that it is reasonable to clarify 
that a student should be in a facility long enough to receive a diploma 
from that facility. Otherwise, the student should remain in the cohort 
of the sending school, since the student would be expected to transfer 
back to the sending school before the time of his or her graduation. 
Further, upon a student's release from a prison or juvenile facility, 
it is critical for the LEA or school that the student previously 
attended to re-engage with the student to ensure a positive and 
supportive

[[Page 86182]]

transition that provides a pathway to a regular or State-approved 
alternative high school diploma. The Department encourages LEAs and 
schools to maintain an open line of communication with prisons and 
juvenile facilities to help ensure that students who are assigned to, 
and ultimately released from, such facilities receive an appropriate 
education and do not disappear from a graduation cohort.
    The Department appreciates the suggestion that a student must 
``meaningfully participate'' in an education program in a prison or 
juvenile facility, but, given the inherent challenge in defining that 
term, we decline to add it to the regulation. We do, however, encourage 
States to implement procedures to ensure that educational programs in 
prisons and juvenile facilities are of high quality.
    The Department does not believe that it is necessary to revise the 
language on partial enrollment to clarify that the requirements related 
to reporting on students partially enrolled also apply to students in 
juvenile facilities. The Department believes that the language as 
written will apply to those facilities, and that adding specific 
language to that section will not clarify the requirement, but will 
instead create confusion.
    The Department notes that some commenters have indicated that 
disaggregating data for students in juvenile justice facilities will 
provide useful information for understanding their graduation outcomes. 
While we understand that this information may be useful, we decline to 
expand the statutory list of subgroups for which disaggregation is 
required. We note, however, that States are free to add to their report 
cards information that they believe will be useful for their 
stakeholders.
    We appreciate suggestions from commenters about topics for 
potential guidance on this issue. Should we determine that further 
guidance is needed related to this issue, we will take these comments 
into consideration.
    Changes: We have revised Sec.  200.34(b)(3)(iii) to align with 
statutory language by replacing the phrase ``culminates in the award 
of'' with the phrase ``expected to receive'' a diploma. The Department 
has further revised Sec.  200.34(b)(3)(iii) to clarify that, in order 
for students that transfer to a prison or juvenile facility to be 
removed from a cohort, there must first be an adjudication of 
delinquency and the student must be expected to receive a regular high 
school diploma or State-defined alternate diploma during the period in 
which the student is assigned to the prison or juvenile facility.
Cross Reference to the Assessment Regulation
    Comments: None.
    Discussion: In defining ``alternate diploma'' under proposed Sec.  
200.34(c), the Department cross-referenced a proposed requirement in 
Sec.  200.6(d)(1) related to assessment requirements under title I, 
part A, of the ESEA, as amended by the ESSA, that was subject to 
negotiated rulemaking under the ESSA and on which the negotiated 
rulemaking committee reached consensus. This proposed requirement, 
included in a notice of proposed rulemaking published in the Federal 
Register on July 11, 2016, would require a State to adopt guidelines 
for IEP teams to use when determining which students with the most 
significant cognitive disabilities should take an alternate assessment 
aligned with alternate academic achievement standards, including a 
State definition of students with the most significant cognitive 
disabilities. These proposed requirements have not been finalized and, 
as a result, the Department is removing this language from the final 
regulations.
    Changes: We have revised Sec.  200.34(c)(3)to remove references to 
proposed Sec.  200.6(d)(1).

Section 200.35 Per-Pupil Expenditures

Student Count Procedure
    Comments: One commenter supported the use of an October 1 
membership count as the uniform denominator used in per-pupil 
expenditure calculations. Several commenters, however, noted that many 
States define student counts for State-determined school finance 
formulas using a date other than October 1 and, as a result, States 
could be required to collect additional enrollment count data to comply 
with the requirements in proposed Sec.  200.35(c)(2). Several 
commenters recommended that we revise the requirement to provide States 
greater flexibility, by, for example, requiring States to specify a 
uniform statewide definition of student count, requiring a State and 
its LEAs to use the same student count for per-pupil expenditures as is 
used for State funding allocations, or allowing States to select either 
the October 1 count or the student count the State uses for State 
funding allocations.
    Discussion: We acknowledge that States use various methods to 
measure student enrollment for use in State-determined school finance 
formulas. However, all States annually report to NCES, by LEA and 
school for every grade that is offered, a uniform membership count 
(i.e., enrollment) of all students to whom each LEA provides a free 
public education on or about October 1. This measure is a count of the 
number of students for whom the reporting LEA is financially 
responsible and is collected annually by NCES through Common Core of 
Data (CCD) collection. This information is then used to calculate per-
pupil expenditures by LEA and State, as reported by NCES through the 
National Public Education Financial, LEA Finance (F-33) surveys, and by 
school, as reported to NCES through the pilot School-Level Finance 
survey. We recognize that SEAs also report average daily attendance 
(ADA) data to NCES to determine the average State Per Pupil Expenditure 
(SPPE) for elementary and secondary education. But because ADA data is 
not comparable across States, we elect to follow the NCES convention of 
using membership data to calculate and report expenditures per pupil 
for public reporting purposes. Further, by establishing minimum 
requirements that align with existing data collections we are limiting 
the burden on States and LEAs for complying with this new statutory 
requirement.
    Therefore, to encourage consistent, fair, and aligned reporting 
practices across States and LEAs, we decline to change the manner in 
which the number of students is determined for purposes of calculating 
per-pupil expenditures. We are, however, modifying the regulation to 
clarify that the NCES CCD enrollment count data that is used to 
calculate per-pupil expenditures for annual report card purposes must 
reflect enrollment data from ``on or about'' October 1.
    Changes: We have revised Sec.  200.35(c)(2) to clarify that the 
denominator used for purposes of calculating per-pupil expenditures 
must use the student count data from ``on or about'' October 1, 
consistent with the figure reported to NCES.
    Comments: Several commenters asked if the per-pupil expenditure 
denominator should include preschool students and if preschool students 
are included in the membership count collected by NCES.
    Discussion: The CCD collection includes an annual count of 
students, which includes students in the group or classes that are part 
of a public school program that is taught in the year or years 
preceding kindergarten. Therefore, the expenditure denominator should 
include preschool students.
    Changes: We have revised Sec.  200.35(c)(2) to clarify that the 
denominator used for purposes of calculating per-pupil expenditures 
must

[[Page 86183]]

include preschool enrollment, consistent with the universe portion of 
the school CCD collection student membership definition.
Account Code Definitions
    Comments: Many commenters requested that the Department specify 
account code definitions to enable States to calculate per-pupil 
expenditures. For example, one commenter supported the proposed rule 
because it would ensure all schools have fair and equitable access to 
funds and would broaden public knowledge of resource disparities, but 
requested that the Department require States and LEAs to implement a 
uniform chart of accounts that identifies additional categories of 
expenditures to increase transparency. A number of other commenters 
stated that proposed Sec.  200.35 is ambiguous about the definition of 
private funds. One commenter proposed a different set of expenditure 
categories to include on report cards than those in the proposed 
regulations.
    Discussion: We agree with commenters that definitions should be 
clear for all entities calculating and reporting per-pupil 
expenditures. We also believe, where feasible, calculations should be 
uniform across States and consistent with existing data collections, so 
that the public can easily compare and contrast school system spending 
patterns. To this end, the final regulations clearly specify the 
composition of the numerator and denominator for the calculation, 
including the types of expenditures that must be included. 
Additionally, to the extent possible, Sec.  200.35 aligns current 
expenditure reporting requirements with existing NCES collection 
procedures.
    However, we do not specify or require the use of particular account 
codes because we believe that States should have flexibility to develop 
and implement the uniform statewide procedures for calculating and 
reporting per-pupil expenditures that work best for the unique 
configurations and capacities of their LEAs and schools. Nevertheless, 
we encourage States to adopt statewide account code definitions aligned 
with those found in the NCES Financial Accounting for Local and State 
School Systems handbook (NCES handbook, available at: http://nces.ed.gov/pubs2015/2015347.pdf), in recognition of the fact that 
States already use these definitions for existing NCES data collections 
and their adoption for the purpose of calculating per-pupil 
expenditures thus would minimum the administrative burden of meeting 
the new reporting requirements.
    Changes: None.
Classification of Expenditures
    Comments: Many commenters requested clarification as to whether 
local funds should include local revenue from rent/royalties and fees 
collected and expressed concern that the proposed regulation does not 
account for other Federal funds that are similar to Impact Aid. Another 
commenter requested guidance on how to report final Impact Aid payments 
made during the preceding fiscal year.
    Discussion: We generally believe that States have both the 
discretion and the responsibility to clarify the composition of local 
revenues as well as other revenue classifications as part of developing 
their statewide procedures for calculating LEA- and school-level 
expenditures per pupil. As noted previously, we encourage States to 
adopt NCES handbook account code definitions, but decline to prescribe 
additional requirements in these final regulations. However, we do 
believe that funding from other Federal programs designed offset losses 
in local tax revenues should be counted as State and local funds, and 
we are revising the final regulations accordingly. The Department will 
consider providing additional information on these types of Federal 
programs, along with suggestions on how to report final Impact Aid 
payments made during the preceding fiscal year, in non-regulatory 
guidance.
    Changes: We have revised Sec.  200.35(a) and (b) to clarify that 
State and LEA report cards must, when reporting per-pupil expenditures, 
include with State and local funds all Federal funds intended to 
replace local tax revenues.
Implementation Concerns
    Comments: Several commenters expressed concern that States and LEAs 
lack sufficiently detailed data or accounting systems to collect and 
report school-level expenditures, making the proposed requirements 
costly, impractical, burdensome, and likely to yield little useful 
information. One commenter stated that the regulations would force LEAs 
to invest significant resources to report school-level expenditures 
that ultimately will not provide a meaningful measure of expenditure 
reporting.
    Discussion: We disagree with the concerns that school-level 
reporting of expenditures may not provide valuable insight to local 
administrators and agree with other commenters who have asserted that 
these data will be an important source of information for 
administrators, parents, and local stakeholders.
    Changes: None.
    Comments: One commenter suggested the Department require only 
personnel costs to be reported at the school level because of the 
difficulty of reporting other types of expenditures that are shared by 
schools within an LEA. Many commenters stated specifically that 
centrally managed support services, such as food service or 
transportation, are not easily disaggregated or reported at the school 
level. Two commenters suggested that the Department adopt more detailed 
requirements for expenditure reporting at the school and LEA levels.
    Many commenters requested further clarification of the 
requirements, including, for example, specifying a uniform standard 
procedure for allocating expenditures at the school level or even 
requiring LEAs to assign all expenditures to the school level.
    One commenter stated that the ESEA, as amended by the ESSA, allows 
central office expenditures to be excluded from school-level reporting 
and that assigning expenditures to individual schools would be 
complicated by different LEA accounting methodologies, resulting in 
data quality issues.
    One commenter suggested the Department add requirements that LEAs 
report the comparison between LEA average expenditures and individual 
schools and the percentage of LEA expenditures on administration and 
shared services. One commenter expressed concern over the reporting 
procedures for State payments to private preschool providers. One 
commenter recommended that the Department not specify an order of 
operation for calculating per-pupil expenditures, stating that some 
States are capable of calculating school-level expenditures without LEA 
reports.
    Discussion: We appreciate the varied suggestions offered by 
commenters, which collectively demonstrate both the importance and 
difficulty of producing uniform and clear per-pupil expenditure data at 
the school and LEA levels. We also acknowledge the decision to report 
certain types of expenditures only at the LEA level requires serious 
deliberation that considers the merits of alternative reporting 
approaches. However, we also believe such decisions are best made by 
States, with input from local stakeholders. For this reason Sec.  
200.35 requires States to develop and clearly describe the statewide 
uniform procedures that delineate which expenditures are reported at 
the school and LEA levels, including how school-

[[Page 86184]]

level expenditures are reported as they relate to LEA expenditures.
    Based on the comments received, it also appears some commenters may 
have misinterpreted the proposed regulations. Although States will 
determine which expenditures are reported at the school level, under 
proposed Sec.  200.35 it is up to States to determine if expenditures 
such as superintendent salaries or food service costs are excluded from 
school-level reporting and only reported at the LEA level.
    In addition, we believe that the establishment of national uniform 
school-level reporting procedures could stifle innovative approaches to 
reporting per-pupil expenditures and would fail to take into account 
local considerations and State laws. Because the statewide approaches 
will be uniformly applied within a State, implementation of proposed 
Sec.  200.35 preserves the ability of within and cross-LEA comparisons 
of per-pupil expenditures.
    Changes: None.
    Comment: One commenter asked the Department to clarify the meaning 
of expenditures not allocated to public schools and whether school-
level expenditures in aggregate equal total LEA expenditures.
    Discussion: We believe it is necessary to clarify how current 
expenditures not reported at the school level are reported and are 
revising the final regulations accordingly.
    Changes: We have revised Sec.  200.35(a)(2) and (b)(2) to clarify 
that State and LEA report cards must report the total current 
expenditures that were not reported in school-level per-pupil 
expenditure figures.
    Comment: One commenter stated that reporting school-level 
expenditures would cause the increased use of pull-out models of 
instruction for students.
    Discussion: We disagree with the concerns that school-level 
reporting of expenditures could cause increased use of pull-out models 
of instruction for students and are unaware of research demonstrating a 
link between school-level expenditure reporting and commensurate shifts 
in the use of pull-out instruction for students.
    Changes: None.
Reporting Exemptions
    Comments: Several commenters requested an exemption for small and 
rural LEAs from the per-pupil expenditure reporting requirement, 
suggesting such an exemption would be consistent with similar 
exemptions under other title I provisions.
    Discussion: While the ESEA, as amended by the ESSA, includes 
special provisions for rural and small LEAs in a number of areas, there 
is no such provision related to the reporting requirement for per-pupil 
expenditures under section 1111(h)(C)(x). Moreover, advocates for rural 
and small LEAs have long expressed concerns about funding equity and 
other resource challenges faced by such LEAs, and reporting on per-
pupil expenditures will support greater transparency and analysis 
around such concerns. Identifying resource disparities among LEAs of 
all types is a key goal of the new per-pupil expenditures reporting 
requirement, and we do not believe excluding the one-third to one-half 
of all LEAs that are small and/or rural from the new requirement would 
be consistent with this goal.
    Changes: None.
    Comments: A number of commenters addressed the inclusion of 
expenditures from private sources in per-pupil expenditure reporting, 
with some commenters requesting clarification on the exclusion of 
private funds, others recommending that the final regulations require 
that they be included, and one commenter asking the Department to 
encourage States and LEAs to include them voluntarily.
    Discussion: Under section 1111(h)(1)(C)(x) of the ESEA, as amended 
by the ESSA, States and LEAs must report per-pupil expenditures of 
Federal, State, and local funds. Funds from private sources do not fall 
within any of these three categories, which encompass only public 
funds. Therefore, Sec.  200.35 requires the exclusion of private funds 
from per-pupil expenditure reporting. We nonetheless encourage States 
and LEAs to consider improving transparency around education finances 
by including the reporting on the use of private funds for public 
educational purposes.
    Changes: None.
Disaggregating Per-Pupil Expenditure Data
    Comments: Some commenters supported the requirement in proposed 
Sec.  200.35(a)(1)(i)(B) and (b)(1)(i)(B) that per-pupil expenditures 
must be disaggregated by (1) Federal and (2) State/local funds. One 
commenter claimed, however, that the ESEA, as amended by the ESSA, 
requires that per-pupil expenditures be disaggregated separately for 
Federal, State, and local funds and requested that proposed Sec.  
200.35 be revised to also require disaggregation of State and local 
funds. Another commenter recommended further disaggregating per-pupil 
expenditures by grade level.
    Discussion: We appreciate the commenters support for the method of 
disaggregating Federal, State, and local funds in Sec.  
200.35(a)(1)(i)(B) and (b)(1)(i)(B). The Department disagrees with the 
commenter claiming the ESEA, as amended by the ESSA, requires that 
Federal, State, and local funds be separately disaggregated. Although 
the section 1111(h)(1)(C)(x) of the ESEA, as amended by the ESSA, 
requires that per-pupil expenditures be disaggregated by source of 
funds, it does not specify the level at which such disaggregation must 
occur. Thus, Sec.  200.35(a)(1)(i) and (b)(1)(i) clarify that a State 
and its LEAs are required to report per-pupil expenditures in total 
(i.e., including all Federal, State, and local funds) and disaggregated 
by (1) Federal funds, and (2) State and local funds. Because typical 
LEA accounting procedures do not require State and local funds to be 
separately tracked, implementation of the commenter's proposal would be 
impractical, complicated, and would likely result in the dissemination 
of inaccurate fiscal data to the public. Further, States with more 
sophisticated accounting systems that are able to disaggregate per-
pupil expenditure reporting by Federal, State, and local funds are not 
precluded from including such data on their report cards. Similarly, 
States are welcome to include disaggregated per-pupil expenditure data 
by grade level on annual State and LEA report cards, but it is not 
required under the ESEA, as amended by the ESSA.
    Changes: None.
Uniform Statewide Procedure
    Comments: Many commenters supported the regulations proposed Sec.  
200.35, arguing that the regulations will increase transparency in a 
manner that will allow the public to identify and address financial 
inequities within a State. Several commenters strongly supported the 
requirement in proposed Sec.  200.35(c) that States develop a single 
statewide procedure for LEA and State use, arguing implementation of 
these regulations will allow the public to hold States, LEAs, and 
school leaders accountable for ensuring that schools and LEAs serving 
traditionally underserved populations are provided the resources they 
need to succeed academically. Commenters also stated the uniform 
procedure requirement will allow for consistent presentation of 
financial data that can be used to evaluate how investments impact 
student outcomes, which will result in more informed budgetary 
decisions by local policymakers. Several commenters recommended 
removing the uniform

[[Page 86185]]

statewide procedure requirement to allow States and LEAs to calculate 
per-pupil expenditures in the manner they determine appropriate.
    Discussion: The Department appreciates the support of commenters, 
including the specific support for the uniform procedures requirement 
in Sec.  200.35(c). The Department disagrees with the commenter 
regarding the removal of this provision. We agree the commenters in 
support of this requirement that absent standard definitions and a 
statewide procedure for calculating expenditures, per-pupil expenditure 
data would not be comparable and would not support meaningful analysis 
of resource inequities between and within LEAs and schools across a 
State.
    Changes: None.
Alignment With Existing Data Collection Requirements
    Comments: Several commenters suggested the development of a 
statewide school finance reporting system that is able to comply with 
proposed Sec.  200.35 requirements would be onerous and recommended 
that States report in a uniform manner as determined by the State. One 
commenter asked if the Department will align with NCES's fiscal 
collection requirements and whether NCES will cease publishing fiscal 
collection results once per-pupil expenditures are disseminated through 
annual State and LEA report cards. One commenter argued a universal 
per-pupil expenditure reporting requirement is incongruous with the 
recent increase of the single-audit expenditure threshold for non-
Federal entities from $500,000 to $750,000.
    Discussion: In clarifying the per-pupil expenditure reporting 
requirements under the ESEA, as amended by the ESSA, the Department 
sought to align these requirements, to the extent practicable, with the 
requirements of the NCES National Public Education Financial Survey, 
the LEA Finance survey (F-33), and the School-Level Finance pilot 
survey. We believe this approach will allow for more efficient 
administration of new collection and reporting processes. We note, 
however, that the new ESEA reporting requirements will not replace NCES 
reporting of national expenditure survey data, which will continue to 
be of use to education researchers, policymakers, and the public 
because they allow for precise comparisons of LEA and SEA spending 
patterns over time. Further, existing NCES collections are not as 
timely as State and LEA report cards and do not report on school-level 
expenditures.
    Regarding the comment referencing the Uniform Administrative 
Requirements, Cost Principals, and Audit Requirements in part 200 of 
title 2 of the Code of Federal Regulations, the Department disagrees 
with claims that single audit requirements are misaligned with per-
pupil expenditure requirements, as these separate requirements are in 
place for different purposes under different regulations. The 
administration of a single audit ensures that Federal funds are 
expended properly, while universal per-pupil reporting requirements 
ensure the public has access to comparable fiscal data.
    Changes: None.
Data Interpretation
    Comments: Two commenters questioned the value of reporting per-
pupil expenditures, arguing such reporting can be misleading depending 
on local factors such as cost-of living.
    Discussion: Under section 1111(h)(1)(C)(x) of the ESEA, as amended 
by the ESSA, States and LEAs must report per-pupil expenditures of 
Federal, State, and local funds. The Department agrees that the per-
pupil expenditure data collected and reported under Sec.  200.35 must 
be presented and analyzed with care, taking into account within-State 
variations based on multiple factors, including differences in the cost 
of education. However, we anticipate that States will include such 
context, where appropriate, in their presentation of per-pupil 
expenditure data on State and local report cards. For example, a State 
could choose to also provide cost-of-living adjusted data on its report 
card if it determined this would be valuable for accurate cross-
district comparisons.
    Changes: None.
General Opposition
    Comments: A numbered of commenters expressed opposition to proposed 
Sec.  200.35, variously claiming that its provisions are not required 
or are inconsistent with the requirements of the ESEA, as amended by 
the ESSA; that the proposed regulations exceed the Department's 
authority; that requiring uniform procedures for calculating per-pupil 
expenditures could limit SEA and LEA flexibility to meet local needs; 
that reporting per-pupil expenditures could lead to pressure to 
equalize education funding, including for charter schools; and that it 
is not clear how such reporting will affect compliance with the title 
I, part A supplement not supplant or comparability requirements. In 
response to such concerns, commenters generally recommended either 
striking the provisions of the proposed regulations that are not 
explicitly required under the ESEA, as amended by the ESSA; making such 
provisions permissive; or replacing most of proposed Sec.  200.35 with 
non-regulatory guidance.
    Discussion: Section 200.35 clarifies reporting requirements 
established by section 1111(h)(1)(C)(x) of the ESEA, as amended by the 
ESSA, so that local policymakers, parents, and the public can easily 
understand how public education funds are distributed across LEAs and 
schools. The regulations establish minimum requirements to ensure 
timely access to comparable spending data, but do not mandate equal 
per-pupil funding at the LEA or school level, prescribe how such data 
should be used in implementing supplement not supplant or comparability 
requirements, or require reporting of additional information to the 
Department beyond that required by statute. Further, as discussed 
previously under Cross-Cutting Issues, the Department has rulemaking 
authority under section 410 of GEPA, section 414 of the DEOA, and the 
section 1601(a) of the ESEA, as amended by the ESSA. Given that 
rulemaking authority and that the regulations fall squarely within the 
scope of title I, part A of the statute, consistent with section 
1111(e), it is not necessary for the statute to specifically authorize 
the Secretary to issue a particular regulatory provision.
    Changes: None.

Section 200.36 Postsecondary Enrollment

Definition of Programs of Postsecondary Education
    Comments: Two commenters supported the proposal in Sec.  
200.36(a)(2) to define ``programs of postsecondary education'' in the 
same manner as ``institution of higher education'' as that term is 
defined under the Higher Education Act of 1965, as amended (HEA). One 
commenter expressed concern about the definition, indicating that it 
was unclear how it would accommodate programs specific to children with 
disabilities that grant certificates instead of degrees. One commenter 
disagreed with the rationale for using the HEA definition (to promote 
consistency in data reporting and allow users to compare across 
States), indicating that the use of this definition would not create 
comparability across States due to different sizes and structures of 
postsecondary systems across States.

[[Page 86186]]

    Discussion: We agree with the comments supporting the proposal to 
define the term ``programs of postsecondary education'' to align with 
the definition of ``institution of higher education'' used in the HEA. 
We believe that it is important that States report on enrollment in 
accredited two- and four-year institutions, as specified in the 
existing HEA definition. With respect to the concerns raised about 
comparability across States, we acknowledge that this definition does 
present limitations for cross-State comparisons due to the differences 
in postsecondary structures across States. Nonetheless, we believe that 
requiring the use of the HEA definition will promote consistency in 
data reporting, since all States will be including postsecondary 
institutions based on the same parameters.
    We do not agree that the definition should accommodate students 
with disabilities who receive certificates of completion. This metric 
is intended to capture postsecondary enrollment of students earning 
diploma types consistent with the graduation rate requirements in Sec.  
200.34. States are able to include additional metrics of postsecondary 
actions if they wish to provide more robust information to parents and 
other stakeholders.
    Changes: None.
Postsecondary Indicators
    Comments: Some commenters requested adding further indicators 
related to postsecondary activities to the regulations. Some commenters 
noted that the postsecondary indicators were solely focused on entry 
into education programs and suggested that they be expanded to include 
other postsecondary actions such as community-based roles, the 
military, job training programs, or service organizations. Two 
commenters recommended including language indicating that postsecondary 
enrollment includes additional metrics, such as the number of courses 
taken without the need for remediation and postsecondary completion. 
One commenter requested disaggregation of postsecondary enrollment data 
by students receiving a regular high school diploma and students 
receiving an alternate diploma; and another commenter requested 
disaggregation by two- and four-year institutions. This commenter also 
requested that the Department require additional information on numbers 
of students receiving scholarships or grants.
    Discussion: We appreciate commenters who indicated that there are 
important postsecondary metrics, including metrics beyond enrollment in 
programs of postsecondary education, that provide a more comprehensive 
picture of student actions after high school. We agree that there are 
many important postsecondary indicators that would provide parents and 
other stakeholders with useful information.
    However, the Department is cognizant of the many reporting 
requirements already included in the State report card, as well as the 
particular challenge involved in linking secondary and postsecondary 
information. As such, the Department declines to impose additional 
burden on States by requiring additional postsecondary measures on 
State and LEA report cards. We note, however, that at its discretion a 
State may choose to include additional information on report cards.
    Changes: None.
Providing Information ``Where Available''
    Comments: Several commenters expressed support for the language in 
Sec.  200.36(c) clarifying that postsecondary enrollment data is 
``available'' and therefore must be reported under proposed Sec.  
200.36(a) if a State is obtaining it or if it is obtainable, and that 
States that cannot meet the reporting requirement must include on 
report cards the year in which they expect complete data to be 
available. Of these, one commenter specifically expressed support for 
part of the Department's rationale, which stated that at least 47 
States can currently produce high school feedback reports, and 
encouraged the Department to consider guidance on making data as 
transparent and accessible as possible. Two commenters expressed 
concern with the requirement, indicating that there would be an ongoing 
cost associated with meeting the requirement. One commenter 
additionally detailed the current challenges and burden of obtaining 
data from postsecondary institutions due to privacy legislation, 
necessity to work with multiple entities, data quality issues, and the 
challenge in capturing students in private and out-of-State 
institutions. One commenter suggested that the Department should 
consider a funding mechanism that would enable the use of National 
Student Clearinghouse data for all States.
    Discussion: We appreciate comments supporting the requirement to 
clarify the meaning of ``available.'' As noted by one commenter, many 
States already have the capacity to report on at least some 
postsecondary enrollment data, indicating that most States should be 
able to meet the requirement to track some, if not all, students in a 
graduating class. This requirement is intended to ensure that as many 
States as possible make postsecondary enrollment information available 
so that parents and stakeholders have access to information about how 
successfully each public high school is in graduating students who go 
on to enroll in postsecondary programs. Additionally, reporting 
publicly on when data will be available if they are not already 
available will encourage States not currently able to meet the 
requirements to obtain and make available this information.
    We recognize that linking secondary and postsecondary data systems 
is challenging and requires an investment in new system infrastructure 
and processes. States are free to obtain the data from any source 
available to them, and States currently linking their systems approach 
this in a number of ways. Some States use the National Student 
Clearinghouse, which houses the most comprehensive information on 
postsecondary actions, but also requires an ongoing investment. States 
are not required to use this source, and some States are developing 
other innovative ways of obtaining data, including data sharing 
agreements or memoranda of understanding with other agencies. States 
engaging in data sharing agreements may contribute data to centralized 
repositories (centralized model), or store data separately and link 
data on demand (federated model). Acknowledging the added challenge of 
obtaining data on private or out-of-State institutions, Congress 
specifically differentiated requirements for those institution types 
compared to public, in-State institutions by adding ``to the extent 
practicable'' to the statutory requirements. The Department understands 
that new data elements, particularly those that involve the complexity 
of navigating multiple systems, will have data quality challenges; 
however, we believe that States need to continue to proactively develop 
the necessary processes to report these metrics in order for critical 
information on postsecondary actions to improve. States should clearly 
document limitations in their reported data to ensure that it is 
interpreted appropriately.
    The Department also understands that data-sharing agreements can 
create privacy concerns and encourages States to use the Department's 
Privacy Technical Assistance Center, which provides resources on best 
practices for ensuring the confidentiality and security of personally 
identifiable information.
    Changes: None.

[[Page 86187]]

Other
    Comments: One commenter indicated that students should only be 
counted in the numerator as enrolling in a program of postsecondary 
education if they have enrolled in credit-bearing coursework without 
the need for remediation.
    Discussion: We appreciate the desire to ensure that the 
postsecondary enrollment metric is a meaningful measure of college-
readiness. However, the Department also believes that adding further 
parameters to the requirement creates added burden and many States are 
still in the early stages of linking their data systems. As such, the 
Department does not agree that additional parameters should be added to 
the metric.
    Changes: None.
    Comments: Two commenters recommended specific topics for guidance. 
One commenter suggested guidance on building internal capacity within 
States to establish linkages between K-12 and postsecondary data 
systems. The commenter further suggested guidance regarding the 
establishment of governance structure to advise on the management of 
these systems. One commenter requested guidance about how to treat 
students who take a gap between their graduation and their enrollment 
in a postsecondary institution into the postsecondary enrollment 
calculation.
    Discussion: We appreciate suggestions from commenters about topics 
for potential guidance on these issues. Should we determine that 
further guidance is needed related to these issues, we will take these 
comments into consideration.
    Changes: None.
    Comments: Some commenters expressed concern about the burden 
associated with the regulations. One commenter indicated general 
concerns with the burden of new reporting requirements, and noted that 
postsecondary enrollment data was an example of a new burdensome 
requirement. They suggested that the final regulations should clarify 
statutory requirements rather than create new requirements in order to 
maintain State flexibility to meet statutory requirements. One 
commenter specifically noted concerns regarding the burden associated 
with the requirement to disaggregate by subgroup.
    Discussion: The statute adds the requirement to collect 
postsecondary enrollment data and to disaggregate data by subgroup. 
While commenters are correct that postsecondary enrollment is newly 
added to statutory reporting requirements, many States have been 
reporting on postsecondary enrollment under ESEA flexibility. As such, 
this is a continued requirement for most States, not a new requirement. 
The Department believes that the regulations clarify statutory 
requirements by ensuring consistency and maximizing the utility of data 
reported, but still allowing States the flexibility to determine how to 
meet the reporting requirement (e.g., the source to use for 
postsecondary information).
    Changes: None.

Section 200.37 Educator Qualifications

Definitions
    Comments: Several commenters expressed concerns and some offered 
suggestions regarding the uniform definitions and requirements in Sec.  
200.37. Specifically, several commenters requested that the regulations 
include additional text to the effect that a State's definitions under 
proposed Sec.  200.37(b)(1) and (2), as applied to charter schools, 
must defer to State charter school law. Some commenters requested that 
the Department require that State and LEA report cards use specific 
definitions for the term ``inexperienced,'' and the phrase ``not 
teaching in the subject or field for which the teacher is certified or 
licensed,'' rather than allowing States to adopt their own statewide 
definition for use on State and LEA report cards. In addition, some 
commenters expressed concern with the definition of high- and low-
poverty schools in Sec.  200.37, with a few commenters elaborating that 
these definitions are arbitrary. One of these commenters requested that 
the Department allow States to define what constitutes a high- and low-
poverty school; one commenter suggested defining high- and low-poverty 
schools based on the percentage of economically disadvantaged students 
in a school; and one commenter suggested that the definition of high- 
and low-poverty school reflect title I eligible schools or schools with 
a specific threshold of students with free and reduced lunch that would 
warrant title I eligibility.
    One commenter indicated that the requirements for educator 
qualification definitions in Sec. Sec.  200.37 and 299.18(c)(2) extend 
beyond that which the statute requires, and, in addition, the different 
reporting timelines in these sections would be problematic. Another 
commenter suggested that the timeline for implementing the ESEA, as 
amended by the ESSA, is overly aggressive and does not provide States 
with sufficient time to make necessary changes to State law regarding 
educator qualification definitions. This same commenter further 
contended that the statute prohibits the Department from mandating that 
States define certain terms as required in Sec. Sec.  200.37 and 
299.18(c)(2). In a related sentiment, one commenter requested that the 
Department add text to Sec.  200.37(b) to indicate that States can use 
definitions for the terms ``inexperienced'' and ``not teaching in the 
subject or field for which the teacher is certified or licensed'' that 
may already exist in State law. Another commenter asserted that the 
requirement in Sec.  299.18(c)(2)(ii) and (iii) that States use the 
same definitions of ``out-of-field teacher'' and ``inexperienced 
teacher'' as States adopt under proposed Sec.  200.37(b) will 
necessitate a change in LEA hiring practices and will preclude them 
from hiring novice teachers and novice teachers from teaching in a 
school of their choice.
    Discussion: We appreciate suggestions related to the uniform 
definitions and requirements in Sec.  200.37(b). However, we decline to 
either add additional requirements related to the definitions of 
``inexperienced'' and the phrase ``not teaching in the subject or field 
for which the teacher is certified or licensed'' as applied to charter 
schools or to include specific definitions of these terms. Further, we 
decline to remove or otherwise revise the requirements for these 
definitions in Sec.  200.37(b).
    We believe that standardized statewide definitions of 
``inexperienced'' and ``not teaching in the subject or field for which 
the teacher is certified or licensed,'' adopted by each State and used 
consistently in reporting teacher qualification data on State and LEA 
report cards, will ensure transparency and increase understanding of 
staffing needs in high-poverty and difficult-to-staff schools. 
Furthermore, we believe that uncovering such needs may encourage States 
to target efforts to recruit, support, and retain excellent educators 
in these schools. However, given variation in State laws and contexts, 
we believe States are best positioned to select the required statewide 
definitions of ``inexperienced'' and ``not teaching in the subject or 
field for which the teacher is certified or licensed'' and therefore 
decline to require use of a particular definition as require under 
Sec.  200.37.
    With respect to defining what constitutes a high- and low-poverty 
school, we disagree that the definitions are arbitrary as they are 
consistent with the definitions of these terms under the ESEA, as 
amended by NCLB. This ensures that States can continue to use

[[Page 86188]]

the same definition of these schools that they have used since they 
began reporting teacher qualification data disaggregated by high- and 
low-poverty schools. At the State and LEA levels, parents and other 
stakeholders will be familiar with disaggregated teacher qualification 
data based on these definitions and better able to consider 
implications of the information. In light of the benefits of statewide 
definitions of teacher qualification definitions, the Department 
believes the requirements in Sec.  200.37(b) align with section 
1111(h)(1)(B) and 1111(h)(2)(B) of the ESEA, as amended by the ESSA, to 
develop State and LEA report cards in an understandable and uniform 
format.
    With respect to commenters asserting that the Department does not 
have the authority to require definitions of certain teacher 
qualification terms required under Sec. Sec.  200.37(b) and 
299.18(c)(2) and that the ESEA, as amended by the ESSA, prohibits 
requirements for such definitions, please see discussion below in Sec.  
299.18 in response to other similar comments on this topic. With 
respect to commenters' concerns that the existing State laws regarding 
definitions of ``inexperienced'' and ``not teaching in the subject or 
field for which the teacher is certified or licensed'' would need to be 
revised, as long as current definitions for these terms meet the 
requirements under Sec. Sec.  200.37(b) and 299.18(c)(2), States can, 
in fact, use them to meet the requirements in Sec. Sec.  200.37(b) and 
299.18(c)(2). As to the impact of the required definitions of these 
terms being the same in Sec. Sec.  200.37(b) and 299.18(c)(2), LEAs 
need not necessarily revise their hiring policies, and could instead 
implement other strategies, such as modifying teacher recruitment and 
retention policies and procedures. Nevertheless, regardless of the 
strategies that an LEA elects to implement, it must report and, as 
necessary, address any differences in rates.
    Finally, regarding the timelines for reporting the information 
required in Sec.  200.37 not being sufficient for States to meet the 
requirements, States have been reporting on teachers teaching with 
emergency or provisional credentials as required under the ESEA, as 
amended by NCLB. With respect to the teacher qualification reporting 
requirements new under the ESEA, as amended by the ESSA, as noted 
previously, States and LEAs can request a one-year, one-time extension 
of such new requirements. Further, States and LEAs can choose to align 
the reporting timelines for information reported under Sec.  
299.18(c)(2) with the December 31 deadline for State and LEA report 
cards.
    Changes: None.
Other Comments Related to Sec.  200.37
    Comments: Some commenters supported the requirements in Sec.  
200.37 generally, while others requested additional regulatory text or 
opposed various provisions. Specifically, a few commenters suggested 
requiring additional disaggregation of educator qualification data, 
including by schools with high concentrations of students of color, 
English learners, and students with disabilities or grade level. One 
commenter requested that the Department provide guidance to clarify 
that the categories of teachers reported under proposed Sec.  200.37 
are not mutually exclusive. One commenter requested that Sec.  200.37 
specifically include as inexperienced teachers those teachers of Native 
students who do not have experience with Native culture and language. 
Finally, one commenter expressed concern regarding the elimination of 
the highly-qualified teacher requirements under the ESEA, as amended by 
NCLB, and questioned how that interacts with teacher qualification 
reporting requirements.
    Discussion: The Department appreciates support for the requirements 
in Sec.  200.37. While States and LEAs can calculate and report on 
teacher qualification data disaggregated by categories in addition to 
high- and low-poverty schools, the Department declines to require 
additional disaggregation given the extent of information included on 
State and LEA report cards required by the ESEA, as amended by the 
ESSA. Section 1111(h)(1)(C)(xiv) and 1111(h)(2)(C)(2)(iii) provide for 
States and LEAs to include on report cards any additional information 
they believe will best provide parents, students, and other members of 
the public with information regarding the progress of each of the 
State's public elementary and secondary schools. The Department will 
take into consideration one commenter's question on the reporting 
categories under Sec.  200.37 as we consider guidance to support States 
and LEAs on the implementation of the reporting requirements under the 
ESEA, as amended by the ESSA. We decline to add regulatory requirements 
around the term ``inexperienced'' teachers; while we agree with the 
comment concerning the value of having teachers of Native American 
students who have experience with native culture or language, States 
may add these type of requirements if they choose to do so. Finally, 
regarding highly-qualified teacher requirements, the ESEA, as amended 
by the ESSA, eliminates the highly-qualified teacher requirements under 
the ESEA, as amended by the ESSA.\28\ Under title I of the ESEA, as 
amended by the ESSA, the SEA is required to ensure that all teachers 
and paraprofessionals working in a program supported with funds under 
title I meet applicable State certification and licensure requirements, 
including any requirements or certification obtained through 
alternative routes to certification.
---------------------------------------------------------------------------

    \28\ The ESSA also amended the IDEA by removing the definition 
of ``highly qualified'' in section 602(10) and the requirement in 
section 612(a)(14)(C) that special education teachers be ``highly 
qualified'' by the deadline established in section 1119(a)(2) of the 
ESEA, as amended by NCLB. However, Section 9214(d)(2) of the ESSA 
amended section 612(a)(14)(C) of the IDEA by incorporating the 
requirement previously in section 602(10)(B) that a person employed 
as a special education teacher in elementary school, middle school, 
or secondary school must: (1) Have obtained full certification as a 
special education teacher (including certification obtained through 
alternative routes to certification), or passed the State special 
education teacher licensing examination and hold a license to teach 
in the State as a special education teacher, except that a special 
education teacher teaching in a public charter school must meet the 
requirements set forth in the State's public charter school law; (2) 
not have had special education certification or licensure 
requirements waived on an emergency, temporary, or provisional 
basis; and (3) hold at least a bachelor's degree.
---------------------------------------------------------------------------

    Changes: None.

Other Data--Civil Rights Data Collection Data

    Comments: Some commenters requested that the Department specify the 
data elements that States must report under sections 
1111(h)(1)(C)(viii) and 1111(h)(2)(C) of the ESEA, as amended by the 
ESSA. Specifically, some commenters requested that we clarify in 
regulations what States must report regarding, for example, the number 
and percentage of students enrolled in preschool programs, data on 
chronic absenteeism, and data on incidents of violence.
    Discussion: The Department appreciates these comments requesting 
clarification the information that States need to implement the 
provisions under section 1111(h)(1)(C)(viii) and 1111(h)(2)(C) of the 
ESEA, as amended by the ESSA. These provisions require State and LEA 
report cards to include information as reported under the Civil Rights 
Data Collection (CRDC) in categories including measures of school 
quality, climate, and safety, including rates of in-school suspensions, 
out-of-school suspensions, expulsions, school-related arrests, and 
referrals to law enforcement; chronic absenteeism (including both 
excused and unexcused absences); incidences of violence, including 
bullying and harassment; number and percentage of students

[[Page 86189]]

enrolled in preschool programs; and the number and percentage of 
students enrolled in accelerated coursework to earn postsecondary 
credit while still in high school. We wish to allow States and LEAs 
flexibility regarding the particular data elements they use to report 
information on these categories. We will consider providing additional 
information about how States and LEAs can meet these requirements as we 
consider guidance to support States and LEAs on the implementation of 
the reporting requirements under the ESEA, as amended by the ESSA.

Sections 299.13-299.19 Cross-Cutting Issues

Accessibility of Notices, Documentation, and Information
    Comments: Many commenters remarked on the requirements that appear 
in Sec.  299.13(f) and proposed Sec.  299.18(c)(4)(v), which 
specifically reference the use of Web sites to publish required 
information including a consolidated State plan or individual program 
State plan, and information regarding educator equity. These sections 
include specific language designed to maximize access to the required 
information by individuals with disabilities and individuals with 
limited English proficiency. While a small number of commenters 
supported the proposed accessibility requirements generally, several of 
the commenters expressed concern that the requirements do not 
sufficiently ensure that parents and other stakeholders are able to 
access the information regarding the consolidated State plan or 
individual program State plan or the information regarding educator 
equity. Of the commenters expressing concern, many discussed the 
accessibility of notices, documentation, and information provided on 
SEA and LEA Web sites, particularly for individuals with disabilities 
or individuals with limited English proficiency.
    Discussion: The Department agrees with the commenters regarding the 
necessity of ensuring that all parents and other stakeholders, 
including those with disabilities and those with limited English 
proficiency, have meaningful access to the information disseminated 
under these provisions. Such access is critical to ensure transparency 
to parents, educators and the public on State plans and educator equity 
data. Regarding additional regulatory language to ensure that 
individuals with limited English proficiency can access notices and 
documentation and information, please see discussion in Sec.  
200.21(b)(2). Regarding additional regulatory language to ensure that 
individuals with disabilities can access the information regarding a 
State's consolidated State plan or individual program State plan and 
information regarding educator equity, please see discussion in Sec.  
200.30(c). In every instance in Sec.  299.13 where an SEA is required 
to publish information or data, we are aligning the language throughout 
the section.
    Changes: We have aligned the language in Sec.  299.13(b)(1), 
(b)(2), (c)(1)(iii)(E), and (f) to require the information to be 
published ``on the SEA's Web site in a format and language, to the 
extent practicable, that the public can access and understand in 
compliance with the requirements under Sec.  200.21(b)(1) through 
(3).''

Section 299.13 Overview of State Plan Requirements

Proposed Removal of All Plan Requirements
    Comments: Several commenters recommended removing Sec. Sec.  
299.13-299.19 from the final regulations. These commenters argued that 
States should be permitted to establish State plan procedures and 
timelines. Additionally, commenters stated that the Department lacks 
authority to require a State to provide the specific information 
detailed in Sec. Sec.  299.13-299.14.
    Discussion: Whether a State submits consolidated State plans or 
individual program plans, the statute provides the Secretary with 
authority to establish procedures and timelines for submission. For 
example the individual program State plans in title II, part A, are 
generally to be submitted ``at such time and in such manner as the 
Secretary may reasonably require'' under section 2101(d)(1) of the 
ESEA, as amended by the ESSA. In regards to consolidated State plans, 
section 8302(a)(1) of the ESEA, as amended by the ESSA, indicates that 
the Secretary ``shall establish procedures and criteria under which, 
after consultation with the Governor, a State educational agency may 
submit a consolidated State plan or a consolidated State application 
meeting the requirements of this section.'' Additionally, section 410 
of GEPA, 20 U.S.C. 1221e-3, authorizes the Secretary, ``in order to 
carry out functions otherwise vested in the Secretary by law or by 
delegation of authority pursuant to law, . . . to make, promulgate, 
issue, rescind, and amend rules and regulations governing the manner of 
operations of, and governing the applicable programs administered by, 
the Department.'' Moreover, section 414 of the DEOA similarly 
authorizes the Secretary to prescribe such rules and regulations as the 
Secretary determines necessary or appropriate to administer and manage 
the functions of the Secretary or the Department. 20 U.S.C. 3474.
    The regulatory provisions in Sec. Sec.  299.13-299.19 specify that 
the State plan requirements are being issued in accordance with the 
authority granted to the Secretary by GEPA, DEOA, and section 8302 of 
the ESEA, as amended by the ESSA. With respect to the commenter's 
specific concern that States should be allowed the discretion to 
establish State plan procedures and timelines, Sec. Sec.  299.13-299.19 
are not inconsistent with individual program State plan requirements or 
the consolidated State plan requirements in section 8302 because the 
Secretary has the authority to establish the time and manner for 
submission of individual program State plans and establish the 
procedures and criteria for a consolidated State plan under section 
8302.
    Changes: None.
Additional Assurances
    Comments: Several commenters noted that section 8302(b)(3) of the 
ESEA, as amended by the ESSA, requires the Department to explicitly 
include an assurance regarding the equitable participation of private 
school students and teachers because it is, according to the 
commenters, absolutely necessary for the consideration of the 
consolidated State plan. This assurance was not, however, included in 
the proposed regulations, and the commenters recommend that Sec.  
299.13(c) be amended to include it.
    Additionally, one commenter requested that States provide the 
assurances in section 1111(g) of the ESEA, as amended by the ESSA, 
specifically emphasizing that the Committee of Practitioners has been 
involved in the development of the State plan.
    Discussion: We agree, in part, with these commenters. Section 
8302(b)(3) of the ESEA, as amended by the ESSA, contemplates that the 
consolidated State plan include an assurance of compliance with 
applicable provisions regarding participation by private school 
children and teachers. Therefore, we agree with the commenters that 
this assurance is a necessary part of the consolidated State plan. We 
are adding Sec.  299.14(c), a new section on consolidated State plan 
assurances, to include an assurance regarding participation by private 
school children and teachers.

[[Page 86190]]

    However, the Department declines to include an additional assurance 
regarding the Committee of Practitioners. All statutory assurances for 
covered programs are generally applicable under section 8304(a) of the 
ESEA, as amended by the ESSA, which requires that each SEA assure that 
each program covered by the State plan be administered in accordance 
with all applicable statutes, regulations, program plans and 
applications. Furthermore, section 8302(b)(3) of the ESEA, as amended 
by the ESSA, requires the Secretary to include only assurances that are 
absolutely necessary for the consideration of consolidated State plans. 
Therefore, we do not think it is necessary to include a specific 
assurance regarding the Committee of Practitioners.
    Changes: We have revised Sec.  299.14 to include a new Sec.  
299.14(c) on consolidated State plan assurances, which includes a new 
assurance regarding State compliance with sections 8501 and 1117 of the 
ESEA, as amended by the ESSA, regarding participation by private school 
children and teachers.
Section 299.13(k) Individual Program State Plan Requirements for Title 
I, Part C
    Comments: None.
    Discussion: Based on further internal review, the Department is 
clarifying in final Sec.  299.13(k)(2) that SEAs who choose to submit 
individual program State plans for title I, part C, must also meet the 
consolidated State plan requirements in Sec.  299.19(b)(2) in order to 
address sections 1303(f)(2), 1304(d), and 1306(b)(1) of the ESEA, as 
amended by the ESSA. The specific requirements are related to the 
proper identification and recruitment of eligible migratory children 
and their unique educational needs, consultation, measureable program 
objectives, and uses of funds. It is essential for all title I, part C 
State plans, whether submitted as an individual title I, part C State 
plan or consolidated State plan to address these requirements as they 
provide necessary information for each SEA and the Department in 
addressing statutory requirements included in title I, part C of the 
ESEA, as amended by the ESSA.
    Changes: We have added Sec.  299.13(k)(2) to include the specific 
requirements in Sec.  299.19(b)(2) for title I, part C that a State 
must also include if it submits an individual title I, part C State 
plan.
Section 299.13(b) Timely and Meaningful Consultation
    Comments: Many commenters supported the Department's proposed 
requirements for timely and meaningful consultation in Sec.  299.13(b). 
Commenters appreciated that the requirements emphasized consultation 
with a variety of stakeholders at various stages of State plan 
development, including an explanation of how input was taken into 
consideration. A number of commenters requested that the Department 
align the requirements with the Secretary's Dear Colleague letter 
issued on June 23, 2016, regarding stakeholder engagement (Stakeholder 
Engagement DCL). Many commenters also requested that the Department 
provide further guidance consistent with the requirements in Sec.  
299.13(b) for other ESEA programs. One commenter suggested that the 
Department consider providing more specific resources for ensuring 
meaningful stakeholder engagement. Another commenter suggested that the 
Department provide guidance clarifying that meaningful engagement means 
engagement in ways that are culturally and linguistically responsive.
    Discussion: The Department appreciates the extensive support for 
the timely and meaningful consultation requirements in Sec.  299.13(b). 
In order to ensure that States implement ESEA with fidelity, the 
Department strongly encourages States to consult and engage with 
stakeholders consistent with the best practices identified in the 
Stakeholder Engagement DCL, which is available at: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html. In addition to ensuring the 
specific requirements in Sec.  299.13(b) are met during the design and 
development of the SEA's plan, prior to initial submission of the plan, 
and prior to any revisions or amendments of the approved plans, the 
Department encourages States to consider applying the timely and 
meaningful consultation requirements throughout its implementation of 
the ESEA, as amended by the ESSA. Where relevant, we will consider 
issuing additional ESEA non-regulatory guidance regarding timely and 
meaningful consultation in the future, including guidance on culturally 
and linguistically responsive engagement.
    Changes: None.
    Comments: While commenters generally supported the requirements for 
timely and meaningful consultation in Sec.  299.13(b), several 
recommended changes or additions to the proposed requirements. Some 
commenters asked that the regulations require not only consultation 
during preparation of the State plan, but also throughout 
implementation of the plan. Other commenters asked that language be 
added requiring States to describe their systems and structures for 
ensuring that meaningful and continuous stakeholder engagement occurs.
    Additional commenters asked that the regulation be amended to 
require States to: (1) Provide 60 days public notice of the draft State 
plan; (2) provide written agendas prior to meetings and written 
responses to public comments; and (3) ensure high quality two-way 
communications between the State and stakeholders about the State plan. 
In particular, some commenters asked that two-way communication be 
required with teachers, and with parents and families. Another 
commenter suggested that the final regulations require that stakeholder 
engagement include meetings that educators can attend, which one 
commenter specifically provided should be through the provision of 
flexible leave to school employees for attendance at such meetings.
    Discussion: The Department appreciates the comments suggesting 
additional requirements for timely and meaningful consultation but 
declines to add the requested requirements, which are, for the most 
part, already addressed in the regulations. We are requiring SEAs in 
the performance management requirements in Sec.  299.15(b)(2)(i) to 
``collect and use data and information, which may include input from 
stakeholders and data collected and reported under section 1111(h), to 
assess the quality of SEA and LEA implementation.'' In regards to 
requiring descriptions of systems and structures for consultation and 
requiring two-way communication about the plan, Sec.  299.13(b) details 
a process that States must follow to satisfy the requirement for timely 
and meaningful consultation, including a requirement in Sec.  
299.13(b)(3) that the State ``[d]escribe how the consultation and 
public comment were taken into account in the consolidated State plan 
or individual program State plan.'' Therefore, we believe that States 
will provide valuable information on how the communication was a two-
way dialogue. In addition, the provisions in Sec.  299.15(b)(2)(i) 
encourage each SEA to continue to meaningfully engage with stakeholders 
to collect data on implementation of SEA and LEA plans. In regards to 
requiring two-way consultation specifically with teachers, and with 
parents and families, these two groups are among those already listed 
in Sec.  299.15(a) with whom the State must ``. . . [engage] in timely 
and meaningful

[[Page 86191]]

consultations consistent with Sec.  299.13(b).'' We encourage all 
States to specifically ensure that timely and meaningful consultation 
occurs during hours that parents, families, and current educators can 
participate and identified this as a best practice in the Stakeholder 
Engagement DCL.
    In response to the comments requesting that we extend the public 
notice period from 30 days to 60 days, the Department encourages all 
States to provide as much time for public notice and outreach as 
possible. However, since section 1111(a)(8) of the ESEA, as amended by 
the ESSA, on which this requirement is based, only requires a State to 
make the State plan available for ``not less than 30 days,'' the 
Department declines to make this change. With regard to adding language 
requiring agendas and written follow up to comments, the Department 
encourages States to provide this sort of feedback to stakeholders, 
whenever possible, but finds making this a requirement would be unduly 
burdensome. Given the volume of comments received indicating that the 
consolidated State plan requirements, as drafted, are overly 
burdensome, the Department will not add the additional requirements to 
the consolidated State plan.
    Changes: None.
    Comments: Several commenters suggested that the regulations should 
require States to engage with Tribal governments above and beyond 
stakeholder engagement. Commenters recommended that the Department use 
Executive Order 13175 as a guide for ensuring that the regulations 
properly outline tribal consultation in the regulations. Commenters 
suggested that including a requirement in Sec.  299.13(b) for SEAs to 
consult with tribes using agendas that are agreed upon in advance, and 
requiring SEAs to follow up in writing with stakeholders would help 
ensure that consultation is meaningful, and is respectful of the trust 
responsibility. Finally, one commenter urged the Department to 
condition State plan approval upon proof of meaningful consultation 
with Tribal nations.
    Discussion: The commenter correctly notes that the Department has a 
government-to-government relationship with tribes, and that the 
consultation between the Department and tribes is outlined in Executive 
Order 13175. However, the Federal trust responsibility does not extend 
to SEAs. Therefore, the Department declines to add language to Sec.  
299.13(b) regarding additional requirements for tribal consultation. As 
noted previously, the Department encourages SEAs to provide agendas and 
written follow-up to stakeholders, whenever possible, but finds making 
this a requirement unduly burdensome.
    In response to the commenter who asked that State plan approval be 
conditioned upon proof of meaningful consultation with Tribal nations, 
Sec.  299.13(b)(3) requires States to describe how consultation and 
public comment were taken into account in the consolidated or 
individual State plan. We believe that this requirement addresses the 
commenter's concerns. Therefore, we decline to add additional language.
    Changes: None.
    Comments: Several commenters expressed satisfaction with the 
required processes for how States should engage in timely and 
meaningful consultation with stakeholders in formulating the State 
plan. Commenters asked that Sec.  299.13(b) be amended to require LEAs 
to use the same timely and meaningful consultation processes in 
formulating LEA plans.
    Discussion: The Department declines to add the requested 
requirement as it is outside of the scope of the regulations, which 
address only State plan requirements, not requirements for LEA plans. 
Additionally, if States choose to allow LEAs to submit consolidated LEA 
plans, section 8305(c) of the ESEA, as amended by the ESSA, makes clear 
that procedures for submission of the plans are not set by the 
Department noting, ``a State educational agency, in consultation with 
the Governor, shall collaborate with local educational agencies in the 
State in establishing procedures for the submission of the consolidated 
State plans or consolidated State applications under this section.'' If 
the State decides to use individual program applications rather than a 
consolidated local plan, individual applications for most covered 
programs already include consultation requirements. However, because we 
believe that timely and meaningful consultation is important and that 
ESEA implementation must be transparent, we encourage States to 
consider including the timely and meaningful consultation requirements 
at the local level.
    Changes: None.
    Comments: A few commenters commended the Department for including 
consultation with the Governor under section 8540 of the ESEA, as 
amended by the ESSA, in the requirements for timely and meaningful 
consultation in Sec.  299.13(b). Two commenters requested that the 
Department require States to describe how they are meeting this 
requirement, including how the SEA engaged with the Governor by 
describing, among other things, the frequency of meetings and the 
extent of collaborative planning.
    Discussion: Although the Department believes that SEA consultation 
with the Governor is important, the Department declines to require an 
additional description regarding how the SEA completed this 
consultation. Section 299.15 requires an SEA to describe how it engaged 
in timely and meaningful consultation consistent with Sec.  299.13(b), 
including the Governor's consultation requirement in Sec.  
299.13(b)(4). An SEA must already describe in its consolidated State 
plan how it met the requirements of section 8540 of the ESEA, as 
amended by the ESSA. Therefore, we do not believe that requiring an 
additional description is necessary. Furthermore, in order to limit 
burden associated with submitting a consolidated State plan, the 
Department declines to add an additional requirement that an SEA, when 
describing how it consulted with the Governor, describe the frequency 
of meetings and the extent of collaborative planning.
    Changes: None.
Foster Care Requirements
    Comments: Many commenters expressed concern about the proposed 
assurance in Sec.  299.13(c)(1)(ii) that required SEAs to ensure that 
LEAs receiving funds under title I, part A of the ESEA, as amended by 
the ESSA, would provide children in foster care with transportation to 
and from their schools of origin even if the LEA and local child 
welfare agency did not agree on which agency or agencies would pay the 
additional costs incurred to provide such transportation. Many 
commenters indicated that the assurance appeared inconsistent with 
section 1112(c)(5)(B) of the ESEA, as amended by the ESSA, and 
expressed concern that it would undermine the collaborative process 
anticipated by the ESEA. Other commenters expressed concern that the 
regulations would impose a significant financial burden on LEAs.
    Many commenters praised the Department for including the 
protections for children in foster care in the State plan requirements, 
but many also proposed that the final regulations mirror the statutory 
requirements for collaboration. Other commenters suggested that the 
regulations require the procedures developed by the LEA and child 
welfare agency to include a dispute resolution process. Some commenters 
specified that it should be the child welfare agency that pays the 
additional costs of transportation, and

[[Page 86192]]

others asked that the regulations require the LEA and child welfare 
agency to automatically split the costs if the agencies cannot reach 
agreement. A number of commenters requested that the regulations 
require both the SEA and the State child welfare agencies to ensure 
that the LEAs and local child welfare agencies collaborate to develop 
and implement clear written transportation procedures. Some commenters 
also requested that the regulations be amended to clarify that the LEA 
must provide or arrange for adequate and appropriate transportation to 
and from the school of origin while any disputes are being resolved. 
Other commenters expressed concern that requiring the LEA to provide 
transportation while disputes were being resolved would cause child 
welfare agencies to initiate a dispute process in order to avoid paying 
for transportation.
    Discussion: The Department appreciates the concerns expressed by 
commenters that the proposed regulations may undermine that 
collaborative process by defaulting to the LEA as the responsible party 
for paying any additional transportation costs. Likewise, the 
Department believes that defaulting to the child welfare agency as the 
sole agency responsible for paying any additional costs associated with 
providing transportation would undermine the collaborative nature of 
the statute. As noted in the Department's non-regulatory guidance 
entitled Ensuring Educational Stability for Children in Foster Care, 
children in foster care are a particularly vulnerable subgroup of 
students. We believe these students have a right to educational 
stability, including transportation services as needed, to maintain 
them in their school of origin when in their best interest. Therefore, 
the Department believes that the final assurance in Sec.  
299.13(c)(1)(ii) should clarify the joint obligations for educational 
and child welfare agencies to ensure that transportation is provided to 
maintain educational stability.
    The Department likewise recognizes that there may be circumstances 
where a dispute resolution process is required if an LEA and child 
welfare agency are unable to reach agreement as to which agency or 
agencies will pay any additional costs that may be associated with 
providing transportation to children in foster care to and from their 
schools of origin. However, the Department does not believe it is 
necessary to mandate a specific dispute resolution process as the 
statute clearly requires that LEAs collaborate with child welfare 
agencies to develop procedures that ensure that children in foster care 
needing transportation promptly receive such transportation.
    In order to ensure this statutory requirement is met, the 
Department is clarifying that the SEA must assure that an LEA receiving 
funds under title I, part A has developed procedures that describe how 
such transportation will be provided and funded if the agencies cannot 
reach agreement, whether through a dispute resolution process or 
through default cost sharing. An SEA's assurance here means that the 
SEA must take a leading and active role to ensure that LEAs collaborate 
with State and local child welfare agencies to develop clear and 
written procedures regarding how children in foster care will receive 
transportation, as necessary, to their school of origin when determined 
to be in their best interest.
    We appreciate commenters' concerns about children in foster care 
continuing to receive transportation to the schools of origin while 
disputes are pending, along with concerns about which agency or 
agencies should be responsible for providing this transportation, and 
are clarifying that the written procedures must also describe which 
agency or agencies will initially pay the additional costs incurred in 
providing transportation so that transportation is provided promptly 
during the pendency of the dispute. We believe that the appropriate 
agency or agencies responsible for initially paying the additional 
costs incurred may vary depending on the individual child's 
circumstances. The LEA and local child welfare agency should explore a 
variety of options that consider such circumstances. For example, for 
one child, the foster parent may be willing to transport the child to 
the child's school of origin; for another child, there may existing 
transportation readily available; and there may be instances that 
necessitate the child's transportation being funded.
    Changes: We have revised Sec.  299.13(c)(1)(ii) to remove the 
language requiring the LEA to provide transportation to children in 
foster care if the LEA and child welfare agency do not agree on which 
agency or agencies will pay any additional costs incurred to provide 
such transportation. We have also added language to clarify that the 
written procedures developed by the LEA and State or local child 
welfare agency must address how the transportation requirements will be 
met in the event of a dispute over which agency or agencies will pay 
any additional costs incurred in providing transportation and indicate 
which agency or agencies will initially pay the additional costs so 
that transportation is provided promptly during the pendency of the 
dispute.
    Comments: Several commenters wrote to express views on the best 
interest determination, school of origin, the timing of implementation 
of the new educational stability provisions, the foster care point of 
contact, the timing of the best interest determination, and other 
related issues concerning the educational stability of children in 
foster care.
    Discussion: We agree that the educational stability of children in 
foster care is an important issue and appreciate the feedback on this 
issue. The proposed regulations, however, only addressed the topic of 
which agency or agencies should pay any additional costs associated 
with providing transportation to children in foster care to and from 
their schools of origin. Comments on related issues--such as the best 
interest determination, school of origin, and concerns about timing--
are therefore outside the scope of the regulations. Furthermore, these 
topics are addressed in the Department's non-regulatory guidance 
entitled Ensuring Educational Stability for Children in Foster Care. 
For clarity on the statutory requirements in Sections 1111(g)(1)(E) and 
1112(c)(5) of the ESEA, as amended by the ESSA, we refer commenters to 
this non-regulatory guidance document.
    Changes: None.
Plan Submission Process
    Comments: Several commenters remarked on the proposed plan 
submission dates of March 6, 2017, or July 5, 2017. Many of these 
commenters indicated that the proposed timeline for submission did not 
allow sufficient time for consultation; of particular concern was 
States' ability to adequately consult on a new accountability system 
prior to having the system ready to implement in the 2017-2018 school 
year. Some commenters expressed concern that the proposed submission 
dates would require that States begin to implement their accountability 
systems in school year 2017-2018 before their plans could be approved 
by the Secretary. Other commenters felt that the proposed submission 
deadlines were too late to ensure that SEAs had an approved plan in 
place in time to identify comprehensive and targeted support schools 
for the 2017-2018 school year and asked that the submission date be 
moved up to December 2016; two of these commenters also recommended 
that the Department's review timeline be shortened from 120 to 60 days 
to ensure that plan approval occurs prior

[[Page 86193]]

to the beginning of the 2017-2018 school year. Other commenters 
suggested that the Department allow SEAs to submit portions of the plan 
in a staggered fashion to allow additional time for consultation.
    Discussion: Given that the Department has revised Sec.  200.19(d) 
to permit States to delay full implementation of their accountability 
systems until the 2018-2019 school year and to allow SEAs additional 
time for timely and meaningful consultation, the Department has 
determined it is appropriate to adjust plan submission timelines and 
offer later submission dates. Accordingly, the Department will adjust 
the submission deadlines to April 3, 2017, or September 18, 2017.
    The Department declines to move submission timelines up to December 
2016 because doing so would not allow sufficient time for each SEA to 
engage in timely and meaningful consultation consistent with Sec.  
299.13(b). The Department also declines to reduce its time to review 
plans from 120 to 60 days; sections 1111(a)(4)(A)(v) and 8451 of the 
ESEA, as amended by the ESSA, allow 120 days for review and the 
Department believes that a 60-day review period allows inadequate time 
for the required peer review. While the Department appreciates the idea 
of allowing SEAs to submit their plans in parts, the Department 
believes that the entire consolidated State plan must be submitted at 
one time to ensure fully coordinated strategies.
    Changes: None.
    Comments: One commenter requested clarification on Sec.  299.13(e) 
regarding the process for submitting revisions of consolidated State 
plans during the period for Secretarial review under sections 
1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the ESSA. This 
commenter also requested that the Department streamline the process for 
review.
    Discussion: The Department appreciates the opportunity to clarify 
the requirements in Sec.  299.13(e). During the period of Secretarial 
review, an SEA may revise its initial plan in response to a preliminary 
written determination by the Secretary. When submitting revisions to 
the plan the SEA originally submitted, the SEA must resubmit the entire 
revised State plan, not just the parts that contain the additional 
revisions. The Department intends to provide additional information on 
the timing, format, and process for submitting and reviewing 
consolidated and individual program State plans in the near future.
    Additionally, proposed Sec.  299.13(b)(2)(iii) required timely and 
meaningful consultation prior to the submission of any significant 
revisions or amendments to the consolidated State plan. In order to 
distinguish the requirements for revising an initial State plan from 
the timely and meaningful consultation requirements for an approved 
State plan, the Department is clarifying the language in Sec.  
299.13(b)(2)(iii) to apply to an approved consolidated State plan or 
individual program State plan rather than an initial consolidated State 
plan.
    Changes: The Department has revised Sec.  299.13(e) to indicate 
that an SEA, when resubmitting its initial consolidated State plan, 
must resubmit the entire State plan, which includes its revisions. We 
have also clarified that the timely and meaningful consultation 
requirements in Sec.  299.13(b)(2)(iii) apply to an approved 
consolidated State plan or individual program State plan and not to the 
process for revising initial consolidated State plans under Sec.  
299.13(e).
    Comments: None.
    Discussion: Under Sec.  299.13(d)(i), the Department described the 
process for submitting an initial consolidated State plan or individual 
program State plan. In the proposed regulation Sec.  299.13(d), we 
indicated that an SEA must submit the plan to the Department on a date 
and time to be established by the Secretary. The Department is 
clarifying that the Secretary will, at a future date, also establish 
the manner (e.g., electronic or paper) by which an SEA must submit its 
State plan. Under proposed Sec.  299.13(d)(ii), the Department detailed 
when a consolidated State plan or individual program State plan was 
considered to be submitted by the Secretary if it was received prior to 
an established deadline. We are clarifying that any State plan received 
prior to the deadline established by the Secretary is considered to be 
submitted on the date of the established deadline (rather than the date 
received) for the purposes of the 120 day period of Secretarial review 
under sections 1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the 
ESSA.
    Changes: The Department has revised Sec.  299.13(d)(i) to indicate 
that an SEA must submit its consolidated State plan or individual 
program State plan in the manner (e.g., paper or electronic) to be 
established by the Secretary. The Department has also revised Sec.  
299.13(d)(ii) to indicate that the provision regarding State plans 
received prior to an established deadline is for the purposes of 
tolling the period of Secretarial review under sections 
1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the ESSA.
Extension for Reporting Student-Level Data
    Comments: As discussed later in this document under Sec.  
299.18(c), a few commenters noted that the requirement to provide 
educator equity data at the student level is burdensome. Commenters 
expressed concern as to whether the Department could prescribe any date 
at which the reporting of student-level data is required.
    Discussion: While a few commenters suggested removing the student-
level data requirement altogether, as discussed later in this document 
under Sec.  299.18(c), we believe the requirement to provide educator 
equity data at the student level is critical. However, we understand 
that some States may not currently have the capacity to collect or 
report data at the student level. In light of the fact that the 
requirement may be burdensome for certain States and districts that 
have not yet begun collecting or using student-level data, the 
Department is adding an additional year to the extension that an SEA 
may request, detailed in Sec.  299.13(d)(3). An SEA requesting a three-
year extension for providing educator equity data at the student level 
must, during the three-year extension, publish and provide those data 
in its State plan at the school level, consistent with Sec.  
299.13(d)(3)(ii).
    Changes: We have revised Sec.  299.13(d)(3) to allow an SEA to 
request an extension for three years if it provides the information and 
data required under Sec.  299.18(c) at the school level and submits a 
detailed plan and timeline to provide those data at the student level 
within three years of the date of submission of its title I, part A 
State plan or consolidated State plan.

Section 299.14 Requirements for the Consolidated State Plan

Content of the Consolidated State Plan--Burden and Authority
    Comments: While a small number of commenters appreciated the 
integrated and comprehensive nature of the proposed consolidated State 
plan requirements, several commenters objected to the volume of 
proposed consolidated State plan requirements. The commenters asserted 
that the Department has the statutory authority, under section 8302 of 
the ESEA, as amended by the ESSA, to require an SEA to provide ``only 
descriptions, information, assurances . . . and other materials that 
are absolutely necessary for the consideration of the consolidated 
State plan.'' Some commenters stated that the requirements would result 
in cumbersome and complicated plans that stakeholders would find 
difficult to

[[Page 86194]]

review and understand. Other commenters asserted that the requirements 
promoted certain education policies not explicitly required in the 
statute and would allow the Department to implement a peer review 
process that further promoted those policies. Some commenters 
recommended that the Department condense and streamline the 
consolidated State plan requirements, but did not make specific 
recommendations for requirements to remove. Others recommended that the 
Department reduce specific consolidated State plan requirements 
including the performance management requirements in proposed Sec.  
299.14, assessment requirements in proposed Sec.  299.16, teacher 
quality and equity requirements in proposed Sec.  299.18, and the well-
rounded and supportive education for all students requirements in 
proposed Sec.  299.19.
    Discussion: Section 8302(a)(1) of the ESEA, as amended by the ESSA, 
indicates that the Secretary ``shall establish procedures and criteria 
under which, after consultation with the Governor, [an SEA] may submit 
a consolidated State plan or a consolidated State application meeting 
the requirements of this section.'' Additionally, section 410 of GEPA, 
20 U.S.C. 1221e-3, authorizes the Secretary, ``in order to carry out 
functions otherwise vested in the Secretary by law or by delegation of 
authority pursuant to law, . . . to make, promulgate, issue, rescind, 
and amend rules and regulations governing the manner of operations of, 
and governing the applicable programs administered by, the 
Department.'' Moreover, section 414 of the DEOA similarly authorizes 
the Secretary to prescribe such rules and regulations as the Secretary 
determines necessary or appropriate to administer and manage the 
functions of the Secretary or the Department. 20 U.S.C. 3474. The 
requirements for a consolidated State plan in Sec. Sec.  299.14-299.19 
are being issued in accordance with the authority granted to the 
Secretary by GEPA, DEOA, and section 8302 of the ESEA, as amended by 
the ESSA. With respect to the commenters' concerns that the Secretary 
does not have the authority to include some of the required 
descriptions or information because it is not ``absolutely necessary 
for consideration of the consolidated State plan,'' all of the 
descriptions, information and assurances included in Sec. Sec.  299.14-
299.19 have been determined by the Secretary to be absolutely necessary 
and consistent with the authority in section 8302 of the ESEA, as 
amended by the ESSA. The consolidated State plans must provide 
sufficient detail across the included programs in order to ensure 
transparency for all stakeholders, proper administration of Federal 
funds and allow the Secretary to consider whether such plan is 
consistent with the ESEA, as amended by the ESSA, and applicable 
regulations. Additionally, consistent with the purpose of the 
consolidated State plan, we believe that the regulations would 
significantly reduce burden on each SEA choosing to submit a 
consolidated State plan rather than individual program State plans. 
Furthermore, the Secretary believes that all requirements of the 
consolidated State plan have a statutory basis in the covered program 
provisions throughout the ESEA, as amended by the ESSA, and other 
applicable regulations.
    In response to the concern that the Department may be promoting 
specific education policies through the peer review process for the 
consolidated State plan, the Department is required under section 8452 
of the ESEA, as amended by the ESSA, to ensure that any portion of a 
consolidated State plan that is related to title I, part A is subject 
to the peer review process described in section 1111(a)(4) of the ESEA, 
as amended by the ESSA. The Department intends to administer a peer 
review of consolidated State plans consistent with the purpose of the 
peer review under section 1111(a)(4)(B) to ``maximize collaboration 
with each State; promote effective implementation of challenging State 
standards through State and local innovation; and provide transparent, 
timely, and objective feedback to States designed to strengthen the 
technical and overall quality of the State plans.''
    However, given the concerns expressed by several commenters and the 
Department's desire to eliminate unnecessary burden from State plans, 
we believe that some of the requirements within and across the 
consolidated State plan regulations can be further consolidated. 
Therefore, in an effort to reduce additional burden on States, we are 
changing some previously required descriptions into either an optional 
description or an assurance, and removing some previously required 
descriptions entirely from the consolidated State plan. Additionally, 
in an effort to streamline the requirements, we are reorganizing the 
structure of the consolidated State plan to place all cross cutting 
requirements in Sec.  299.15, including required descriptions on 
consultation and performance management. For performance management, 
each SEA would only have to discuss these cross-cutting requirements 
once rather than under each component as proposed in Sec.  299.14(c). 
Furthermore, we also believe that some of the requirements were not 
clear and therefore were interpreted to be more burdensome than 
intended. As a result, we are clarifying some consolidated State plan 
requirements to address those instances where a lack of clarity in the 
regulatory language resulted in an increase in perceived burden. The 
discussion of the exact changes to reduce burden in Sec. Sec.  299.16-
299.19 of the consolidated State plan are discussed below in the 
specific section where the changes were made.
    Changes: We have moved the requirement in proposed Sec.  299.14(c) 
regarding performance management to Sec.  299.15(b) and revised it so 
that an SEA describes its system of performance management for 
implementation of SEA and LEA plans once rather than separately for 
each of the components required under Sec. Sec.  [thinsp]299.16 through 
299.19. With the exception of Sec.  299.18(c), we have streamlined the 
required descriptions throughout Sec. Sec.  299.15 through 299.19 by 
removing the requirement to identify specific strategies and timelines 
in each required description. We have also revised proposed Sec.  
299.14(c)(1) and (2)(i) to make certain descriptive details optional 
rather than required regarding how the SEA's plan approval process is 
aligned to the strategies identified in the consolidated State plan and 
whether to consider specific data collected and reported under section 
1111(h) of the ESEA, as amended by the ESSA, and specific input from 
stakeholders when assessing the quality of SEA and LEA implementation. 
The changes are reflected in final Sec.  299.15(b)(1) and (2). As a 
result of those changes, we have removed the requirement in proposed 
Sec.  299.19(a)(3)(A)-(D) regarding a review of data and information on 
resource equity, and revised final Sec.  299.15(b)(2) to indicate that 
each SEA may consider such information broadly as part of review and 
approval of LEA plans under the revised requirements for an SEA's 
system of performance management. We have also removed the requirement 
in proposed Sec.  299.15(b) for each State to describe how it will 
coordinate across Federal laws impacting education and included this 
requirement as an assurance in the new section on consolidated State 
plan assurances in final Sec.  299.14(c). We have further removed some 
previously required descriptions and streamlined other requirements in 
Sec. Sec.  [thinsp]299.16 through 299.19 including by changing

[[Page 86195]]

previously required descriptions into assurances and only requiring 
certain descriptions if a State intends to use Federal funds for that 
purpose.
    Comments: Some commenters suggested that additional State plan 
requirements be added to proposed Sec.  299.14. Specifically, one 
commenter asked that proposed Sec.  299.14(c) be augmented to include a 
requirement that SEAs ensure data transparency by describing their 
plans for preparing and disseminating State report cards, and for 
ensuring that LEAs prepare and disseminate local report cards. Other 
commenters asked that proposed Sec.  299.14(c) be amended to require 
that SEAs provide additional information about their strategies and 
timelines for ensuring continuous improvement so that States 
continuously improve all strategies, not just strategies that do not 
lead to satisfactory progress.
    Discussion: The Department agrees with the commenters that data 
transparency and promotion of continuous improvement are important 
goals. To that end, we have already included in final Sec.  299.15(b) 
requirements that consolidated State plans address continuous 
improvement strategies and the use of data in the consolidated State 
plan. We have also established in Sec. Sec.  200.30 and 200.31 
requirements to ensure that State and local report cards contain all 
elements required by the statute, including that these report cards be 
presented in an understandable and uniform format. However, given the 
comments received indicating that the consolidated State plan 
requirements, as drafted, are overly burdensome, the Department will 
not add additional requirements to the consolidated State plan. The 
Department believes that existing statutory and regulatory requirements 
for report cards are sufficient to ensure data transparency. We agree 
with the comment on proposed Sec.  299.14(c) that SEAs should review 
all strategies for continuous improvement and not only those strategies 
that are not improving outcomes and are revising final Sec.  
299.15(b)(2)(iii) to ensure that SEAs review all SEA and LEA plans and 
implementation of those plans for continuous improvement.
    Changes: We have revised Sec.  299.15(b)(2)(iii) to require that an 
SEA describe its plan to continuously improve implementation of all SEA 
and LEA plans.
Integrated Nature of the State Plan
    Comments: Several commenters supported the Department's proposal 
that SEAs develop consolidated State plans that address: Consultation 
and coordination; challenging academic standards and assessments; 
accountability, support, and improvement for schools; supporting 
excellent educators; and supporting all students in a truly 
consolidated manner across all covered programs. One commenter 
expressed concern that the State plan structure is insufficiently 
integrated and will reinforce traditional silos in the education 
system; this commenter recommended that the regulations require SEAs to 
articulate a vision or theory of action that ties the five components 
of the consolidated State plan together.
    Discussion: We appreciate commenters' support for the proposed 
regulations. With regard to a requirement that SEAs articulate an 
overall vision or theory of action, while we encourage SEAs to do this, 
we believe that requirement would unnecessarily increase burden on 
States.
    Changes: None.

Section 299.15 Consultation and Coordination

Stakeholder Engagement
    Comments: Many commenters recommended that the Department 
strengthen the requirements related to SEAs' consultation with 
stakeholders during the design and development of the consolidated 
State plan. Specifically, commenters requested that the Department 
ensure that the voices of stakeholders are heard. Another commenter 
suggested that the Department ensure that teachers are in control of 
the education system. Additionally, one commenter suggested that the 
process for revising the consolidated State plan should be vetted by a 
wide range of stakeholders. An additional commenter suggested that the 
Department define the term ``to be developed in partnership with 
stakeholders'' to mean that the process must be proactive and 
inclusive, and that partners must have all of the same information and 
the assistance needed to fully understand it, the time to develop 
responses, and the vehicles for responding.
    In contrast, two commenters suggested that the consultation 
requirements be removed from the consolidated State plan regulations to 
permit States additional flexibility to establish State plan procedures 
and timelines.
    Discussion: The Department appreciates the comments on ways to 
strengthen engagement, as well as the comments on the importance of 
State flexibility in regard to these requirements. Just as we believe 
that meaningful stakeholder engagement is critical to the consolidated 
State plan development and implementation process, we also believe that 
discrete decisions about the specific process for engagement are best 
made at the local level.
    We appreciate the best practices in consultation and stakeholder 
engagement highlighted by many of the commenters, including information 
sharing and providing vehicles for responding, as well as the proposed 
definition that one commenter provided for the phrase ``to be developed 
in partnership with stakeholders.'' We encourage the use of these best 
practices throughout the consultation process. We further appreciate 
that many commenters emphasized that their voice should be honored and 
not undermined, and we believe the final regulations will help ensure 
that a wide range of stakeholders will be consulted throughout the 
process of consolidated State plan development and implementation. See 
Sec.  299.13 for a discussion of additional comments related to timely 
and meaningful consultation.
    Changes: None.
    Comments: Multiple commenters recommended that the Department 
require each SEA to consult with additional stakeholder groups in 
developing its consolidated State plan, including: Representatives of 
private school students, representatives of non-government school 
students and teachers, and non-government school students and teachers; 
early childhood educators and leaders; parent and teacher advisory 
groups and parents; representatives of teachers' unions; practicing and 
current K-12 teachers; organization members who specifically represent 
students with disabilities; civil rights organizations, including those 
who represent lesbian, gay, bisexual, and transgender (LGBT) students; 
tribal elected or appointed representatives; specialized instructional 
support personnel; school psychologists; community representatives; 
Alaska Native corporations; school librarians; local government; 
individuals knowledgeable about how to meet the needs of specific 
subgroups of students; entities that serve and support some of the most 
vulnerable students, including students involved in child welfare, 
homeless students, juvenile justice-involved youth, and workforce 
development staff, providers, and advocates; employers; and families of 
traditionally underserved students, including low-income children, 
minority children; and English learners. Commenters

[[Page 86196]]

recommended that we require SEAs to consult with these specific groups 
because of their unique voices, as well as the specialized needs of the 
populations that these groups represent. Specifically with respect to 
tribal elected or appointed representatives, the commenter noted while 
the inclusion of ``representatives of Indian tribes located in the 
State'' is important, representatives should not be named as surrogates 
for tribal government representation.
    Discussion: The final regulations include a broad group of required 
stakeholders with whom each SEA must consult when developing its 
consolidated State plan. This group includes each of the groups 
prescribed by the statute, as well as additional stakeholder groups 
that have the potential to bring important and varied perspectives to a 
State's work to develop and implement a consolidated State plan. 
Additionally, the required group of stakeholders in the regulations 
includes a number of the stakeholder groups specifically requested by 
commenters, including: Civil rights organizations, including those 
representing students with disabilities, English learners, and other 
historically underserved students; teachers, principals, other school 
leaders, paraprofessionals, specialized instructional support 
personnel, and organizations representing such individuals; community-
based organizations; employers; and parents and families. For these 
reasons, we generally decline to add additional required stakeholder 
groups, as requested by commenters.
    However, we note that commenters highlighted two critical 
stakeholder groups that were not included in Sec.  299.15(a) of the 
proposed regulations and have unique perspectives to provide to a State 
in its development of its consolidated State plan: Representatives of 
private school students, and early childhood educators and leaders. We 
find particularly compelling commenters' arguments that consolidated 
State plans may not sufficiently reflect the interests of these two 
stakeholder groups-representatives of private school students, and 
early childhood educators and leaders-without the explicit inclusion of 
these groups in the required list of stakeholders with whom a State 
must consult in developing and implementing its consolidated State 
plan. Therefore, we are expanding the list of required stakeholder 
groups to explicitly include these two stakeholder groups. 
Additionally, in order to address the concerns of commenters who did 
not see their particular constituency represented in the required list 
of stakeholders with whom a State must consult on its consolidated 
State plan, we are clarifying in the final regulations that the 
required group of stakeholders with whom a State must consult is a 
mandatory, but non-exhaustive list, and may be supplemented by States 
as appropriate, based on local context and need.
    Changes: We have revised Sec.  299.15(a) to add the following to 
the required list of stakeholders with whom a State must consult on its 
consolidated State plan: Representatives of private school students, 
and early childhood educators and leaders. We have clarified in Sec.  
299.15(a) that the required stakeholder groups represent minimum 
requirements and may be supplemented at each SEA's discretion.
Coordination
    Comments: A few commenters expressed support regarding the 
requirements for the Department's efforts to increase coordination 
across related program plans. One commenter also suggested we add the 
WIOA and career and technical educational programs to the list of 
required programs for plan coordination.
    Discussion: We appreciate the commenters' support for ensuring that 
SEAs coordinate the work they are conducting under their consolidated 
State plan with other programs in the State. The proposed regulations 
in Sec.  299.15(b), as well as the final regulations in Sec.  
299.14(c), include required coordination between the consolidated State 
plan and an extensive group of plans from additional programs, 
including under the WIOA and the Carl D. Perkins Career and Technical 
Education Act of 2006.
    Changes: None.

Section 299.16 Challenging Academic Standards and Academic Assessments

Challenging Academic Standards and Academic Assessments in General
    Comments: Many commenters expressed concern regarding proposed 
Sec.  299.16(a)(1) that requires an SEA to provide evidence at such 
time and in such manner specified by the Secretary that the State has 
adopted challenging academic content standards. Some commenters 
indicated that the Department should only require an SEA to provide an 
assurance that the State adopted challenging academic content standards 
consistent with 1111(b)(1) of the ESEA, as amended by the ESSA.
    Discussion: As some commenters noted, section 1111(b)(1)(A) of the 
ESEA, as amended by the ESSA, requires each State, in its title I, part 
A State plan, to provide an assurance that the State has adopted 
challenging academic content standards and aligned academic achievement 
standards that will be used to carry out title I, part A. At the same 
time, section 1111(b)(1)(D) of the ESEA requires a State to 
``demonstrate'' that those challenging State academic standards are 
aligned with entrance requirements for credit-bearing coursework in the 
system of public higher education in the State and relevant State 
career and technical education standards. Similarly, section 
1111(b)(1)(E) of the ESEA, as amended by the ESSA, permits a State to 
adopt alternate academic achievement standards but only if those 
standards meet specific statutory requirements and section 
1111(b)(1)(F) of the ESEA requires a State to ``demonstrate'' that the 
State has adopted ELP standards that meet certain statutory 
requirements. Moreover, section 1111(b)(2) of the ESEA requires a State 
to ``demonstrate'' that it has implemented a set of high-quality 
academic assessments in at least mathematics, reading/language arts, 
and science. The Department is committed to ensuring that all States 
meet the statutory requirements in sections 1111(b)(1) and (b)(2) of 
the ESEA, as amended by the ESSA, including through peer review 
consistent with section 1111(a)(4).
    In order to avoid any confusion that proposed Sec.  299.16(a)(1) 
may have raised, the Department is removing the provisions in Sec.  
299.16 related to section 1111(b)(1) and replacing them with a general 
assurance of compliance with relevant statutory and regulatory 
provisions regarding standards and assessments in final Sec.  
299.14(c)(2). Because the statutory language is clear, we do not 
believe that further regulatory efforts in the consolidated State plan 
are necessary other than a general assurance that a State will comply 
with the standards and assessment requirements in sections 
1111(b)(1)(A)-(F) and 1111(b)(2) of the ESEA, as amended by the ESSA, 
and applicable regulations.
    Changes: We have removed the requirements in proposed Sec.  
299.16(a), (b)(1)-(2), (4)-(5), and (6) and replaced them with an 
assurance in Sec.  299.14(c)(2) that the State will meet the standards 
and assessments requirements of sections 1111(b)(1)(A)-(F) and 
1111(b)(2) of the ESEA, as amended by the ESSA, and applicable 
regulations.
    Comments: Some commenters praised the coherence of the State plan 
regulations, including Sec.  299.16, while other commenters suggested 
that the requirements were burdensome and

[[Page 86197]]

recommended removing Sec.  299.16 entirely. A number of commenters 
urged the Department to expand local control over standards and 
assessments, or generally to reduce the requirements to use 
standardized tests. A few commenters suggested that testing should 
happen less frequently, such as once in each of several grade spans, 
instead of annually.
    Discussion: The Department appreciates the diversity of opinions 
with regard to the structure of Sec.  299.16. Section 1111(b)(1)(B) of 
the ESEA, as amended by the ESSA, requires each State to establish the 
challenging academic content and academic achievement standards that 
apply to all public schools and public school students in the State, 
except in certain narrow circumstances also described in statute. 
Section 1111(b)(2) of the ESEA, as amended by the ESSA, enumerates 
State responsibilities for statewide academic assessments using the 
same assessments, except in certain cases. The statute clearly requires 
continued use of statewide academic assessments annually in grades 
three through eight and once in high school, regardless of the specific 
reference to such responsibilities in this regulation. However, in an 
effort to streamline the requirements in this section and reduce burden 
for States, the Department is no longer asking each State to describe 
in its consolidated State plan each of the requirements previously 
proposed in Sec.  299.16 that will be reviewed as part of the peer 
review process. States remain responsible for implementing challenging 
academic standards and assessments consistent with the statute and 
applicable regulations. Additionally, in an effort to reduce the 
overall burden associated with submitting the consolidated State plan, 
we are removing the required description of how the State will use 
formula grant funds under section 1201 of the ESEA, as amended by the 
ESSA, and removing this program from the programs included in the 
consolidated State plan under Sec.  299.13(j)(2).
    Changes: As previously described, we have removed the proposed 
requirements in proposed Sec.  299.16(a) and replaced them with an 
assurance in final Sec.  299.14(c)(2) that the State will meet the 
standards and assessments requirements of sections 1111(b)(1)(A)-(F) of 
the ESEA, as amended by the ESSA. Additionally, we have removed the 
proposed requirements in Sec.  299.16(b)(1)-(2) and (4)-(5) and 
replaced them with an assurance of compliance with section 1111(b)(2) 
of the ESEA, as amended by the ESSA, and applicable regulations. 
Finally, we removed the proposed requirement in Sec.  299.16(b)(7) to 
describe how a State will use formula grant funds awarded under section 
1201 of the ESEA, as amended by the ESSA, and have removed this program 
from the programs included in the consolidated State plan under Sec.  
299.13(j)(2).
    Comments: A number of commenters proposed specific changes 
regarding the substance of the assessments as required under section 
1111(b)(2) of the ESEA, as amended by the ESSA, including by reflecting 
on challenges experienced by military students who must adjust to 
various State policies and tests; underscoring that alternate 
assessments be aligned with grade-level academic content standards for 
the grade in which the student is enrolled; proposing that alternate 
assessments for students impacted by trauma be created to measure 
success in schools that serve large populations of such students; 
requesting that States be allowed to assess some students with 
significant cognitive disabilities who do not meet the criteria for 
students with the most significant cognitive disabilities using 
assessments based on academic standards for a grade other than the 
student's enrolled grade; proposing that States coordinate with the 
Head Start community regarding academic standards; requesting an 
assessment pause during the transition to the ESEA, as amended by the 
ESSA; suggesting that additional focus be applied to the needs of 
students with disabilities and English learners with respect to test 
accommodations; asking that ELP not impede English learners from 
passing standardized tests required for graduation; emphasizing that 
ELP tests should be subject to assessment peer review; requesting that 
students receiving instruction primarily in a Native American language 
be explicitly allowed to take assessments in that language; urging that 
social studies assessments be required; recommending that protections 
generally be made clearer for English learners who receive instruction 
primarily in a Native American language school or program; and 
suggesting that English learners be exempt from taking academic content 
assessments if those students are taking ELP assessments.
    Discussion: The proposed consolidated State plan requirements in 
Sec. Sec.  299.14 and 299.16 address the information and assurances 
that a State must submit to the Department in order to receive Federal 
funds, including information and assurances regarding a State's 
compliance with section 1111(b)(2) of the ESEA, as amended by the ESSA. 
In March and April 2016, the Department engaged in negotiated 
rulemaking regarding the substance of the assessment requirements, 
including how a State complies with section 1111(b)(2) of the ESEA, as 
amended by the ESSA. As a result, any comment received in response to 
this NPRM regarding assessment requirements that were subject to 
negotiated rulemaking are considered outside the scope of these 
regulations. The Department will consider any comments on the 
assessment regulations received in response to this NPRM when 
responding to comments received on the notice of proposed rulemaking 
for title I, improving academic achievement of the disadvantaged, 
Academic Assessments published in the Federal Register on July 11, 2016 
(81 FR 44927) (Assessments NPRM).
    Changes: None.
Mathematics Exception for Students in Advanced Courses in Eighth Grade 
in States That Use End-of-Course Mathematics Assessments in High School
    Comments: A few commenters objected to proposed Sec.  299.16(b)(3), 
which would require an SEA to describe its strategies in the 
consolidated State plan to provide all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
coursework in middle school consistent with section 1111(b)(2)(C) of 
the ESEA, as amended by the ESSA, and applicable regulations. The 
commenters noted that the final consensus-based language from 
negotiated rulemaking, on which this proposed requirement was based, 
would only require an SEA to describe its strategies if the State 
administers end-of-course mathematics assessments to high school 
students to meet the requirements under section 1111(b)(2)(B)(v)(I)(bb) 
of the ESEA, as amended by the ESSA, and uses the exception for 
students in eighth grade to take such assessments under section 
1111(b)(2)(C). As written, however, commenters noted that the 
requirement would apply to all States.
    Discussion: The Department agrees with the commenters. The final 
consensus-based language from negotiated rulemaking and the proposed 
regulations in the Assessments NPRM would only require an SEA to 
describe its strategies to provide all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
coursework in middle school if the State administers end-of-course 
mathematics assessments to high school students to meet the 
requirements under section 1111(b)(2)(B)(v)(I)(bb) of the ESEA, as 
amended by the ESSA, and uses the

[[Page 86198]]

exception for students in eighth grade to take such assessments under 
section 1111(b)(2)(C) of the ESEA, as amended by the ESSA.
    Changes: We have revised Sec.  299.16(a) to indicate that an SEA 
would only be required to describe its strategies in the consolidated 
State plan to provide all students in the State the opportunity to be 
prepared for and to take advanced mathematics coursework in middle 
school if the State administers end-of-course mathematics assessments 
to high school students to meet the requirements under section 
1111(b)(2)(B)(v)(I)(bb) of the ESEA, as amended by the ESSA, and uses 
the exception for students in eighth grade to take such assessments 
under section 1111(b)(2)(C) of the ESEA, as amended by the ESSA.

Section 299.17 Accountability, Support, and Improvement for Schools

Sec.  299.17(b)(8) Including All Public Schools in the State 
Accountability System
    Comments: A few commenters sought clarification regarding whether a 
State may use a different methodology for accountability for schools 
serving special populations than the methodology used for all public 
schools. One commenter noted that the list of schools for which a State 
may describe a different methodology from the methodology used for all 
public schools only appeared in the consolidated State plan 
requirements and did not appear in the accountability regulations. 
Specifically, commenters recommended that a State be able to use a 
different methodology for certain accountability indicators for 
alternative schools, schools in the juvenile justice system, schools 
serving reengaged children and youth, credit-recovery schools, and 
schools serving over-age students. Some commenters stated that one such 
modification to the methodology would be to identify schools and 
require interventions based not on a low four-year graduation rate but 
that a State should be able to identify and require interventions in 
these types of schools based on an extended-year graduation rate.
    Discussion: The Department agrees that it was unclear to include a 
list of schools for which a State may use a different methodology for 
accountability in the consolidated State plan requirements but not in 
the accountability regulations. Placing this list in the consolidated 
State plan section gave the incorrect impression that a State might not 
be able to use a different methodology to identify schools for support 
and improvement that serve special populations of students if it 
completed an individual title I, part A State plan. We intended to 
permit a State to use a different methodology for specific types of 
schools, regardless of whether it submits a consolidated State plan or 
an individual title I, part A State plan. See the previous discussion 
regarding Other Requirements in Annual Meaningful Differentiation of 
Schools in this preamble for a discussion of changes to the types of 
schools included in the list.
    Changes: We have revised Sec.  299.17 by removing from the 
consolidated State plan requirements the list of schools for which an 
SEA may describe an accountability methodology that is different from 
its statewide methodology. We have included the list of schools in the 
final regulation at Sec.  200.18(d)(1)(iii) within the context of a 
State's system of annual meaningful differentiation.
Sec.  299.17(d) and (e)--Burden Reduction
    Comments: A number of commenters generally objected to the volume 
of proposed consolidated State plan requirements, including those 
requirements in proposed Sec.  299.17(d) and (e). Some commenters 
contest whether such requirements were absolutely necessary for the 
consideration of the consolidated State plan.
    Discussion: The Department agrees that some of the requirements 
within and across the consolidated State plan regulations can be 
further streamlined. In an effort to reduce burden across all of the 
consolidated State plan requirements, we reconsidered which of the 
proposed descriptions were absolutely necessary for ensuring each State 
is in compliance with the statute and applicable regulations. Given 
that accountability systems under the ESEA, as amended by the ESSA, 
will be significantly different from accountability systems under the 
ESEA, as amended by NCLB, we are preserving many of the consolidated 
State plan requirements regarding each State's new accountability 
system under the ESEA, as amended by the ESSA. In examining the 
proposed requirements related to State support and improvement and 
performance management and technical assistance for low-performing 
schools, we are streamlining the required descriptions and converting 
one proposed description into a required assurance. Under proposed 
Sec.  299.17(e)(3), an SEA was asked to describe additional improvement 
actions the State may take in an LEA with a significant number of 
identified schools. This description is similar to the description 
required under proposed Sec.  299.17(e)(2) regarding technical 
assistance to LEAs with a significant number of identified schools. 
This description may have also overlapped with an SEA response to 
proposed Sec.  299.17(d)(5) in which a State would identify other 
strategies to improve low-performing schools. An SEA could include a 
description of additional improvement actions or other strategies to 
improve low-performing schools in its description of technical 
assistance. Therefore, we are consolidating the descriptions related to 
these provisions into a single required description. We believe that 
the response an SEA might have provided in the proposed descriptions at 
Sec. Sec.  299.17(e)(2) and (d)(5) may be captured in the remaining 
required descriptions. In addition, to further reduce burden in this 
component of the consolidated State plan, we converted the proposed 
description in Sec.  299.17(e)(1) to an assurance in the new 
consolidated State plan assurance section in Sec.  299.14. Final Sec.  
299.14(c)(3) requires each SEA to assure that it will approve, monitor, 
and periodically review LEA comprehensive support and improvement plans 
consistent with requirements in section 1111(d)(1)(B)(v) and (vi) of 
the ESEA and Sec.  200.21(e). The Department believes this assurance is 
absolutely necessary for the consideration of consolidated State plans 
to ensure compliance with statutory requirements under section 
1111(d)(1) of the ESEA, as amended by the ESSA.
    Changes: We have revised Sec.  299.17 by deleting proposed (d)(5) 
and (e)(2).
Cross-Cutting Changes
    Comments: A few commenters recommended we strike or amend specific 
consolidated State plan requirements because they objected to the 
requirements, or they had suggested changes to the accountability 
requirements, which would necessitate conforming changes to the State 
plan requirements. Commenters recommended that we strike or amend 
consolidated State plan requirements related to, for example, summative 
ratings, comprehensive support and improvement plans, and the needs 
assessment.
    Discussion: Each State plan requirement on accountability directly 
relates to the accountability requirements as described in the ESEA, as 
amended by the ESSA, and in the regulations. In response to comments, 
we have made a change or declined to make changes to the 
accountability, support, and improvement requirements

[[Page 86199]]

as described in the sections of this preamble under Sec. Sec.  200.12 
through 200.24. When an accountability requirement changed, we made a 
corresponding change to the consolidated State plan requirement, as 
described in Sec.  299.17. For a discussion of comments related to the 
summative rating, see discussion under the section titled Summative 
Ratings; for a discussion of comments related to targeted support and 
improvement plans, see the discussion under the section titled 
Comprehensive and Targeted Support and Improvement Plans: In General; 
and for a discussion of comments related to needs assessments, see the 
discussion under the section titled Needs Assessment: Comprehensive 
Support and Improvement.
    Changes: We have revised the consolidated State plan requirements 
related to accountability, support, and improvement for schools in 
Sec. Sec.  299.17(b)(3)(ii), (b)(5)(i), (b)(5)(ii), (b)(5)(iii), 
(b)(5)(iv), (b)(7), (b)(8), (c)(3), (c)(4), (c)(5), (d)(2), (d)(4), and 
(d)(5) to conform with changes made in these final regulations.
    Comments: None.
    Discussion: In the course of reviewing the proposed regulations, 
the Department identified opportunities to clarify the regulations and 
strengthen the connections between the accountability regulations and 
the consolidated State plan requirements related to accountability. 
Therefore, we are clarifying multiple requirements in the 
accountability section of the consolidated State plan. There are two 
types of clarifications: (1) Adding or modifying a citation to align to 
the corresponding accountability requirement; and (2) modifying 
language to align with the accountability requirement and specify what 
would be requested in a consolidated State plan.
    Changes: We have revised Sec.  299.17(b)(1), (b)(3)(i),(b)(3)(ii), 
(d)(1), (d)(2), (d)(4) to ensure the consolidated State plan 
requirements align with the requirements in the final accountability 
regulations.

Section 299.18 Supporting Excellent Educators

Sec.  299.18(a) Systems of Educator Development, Retention, and 
Advancement
    Comments: Multiple commenters expressed support for Sec.  299.18(a) 
regarding a comprehensive approach to systems of educator development, 
retention, and advancement. Commenters also recommended a variety of 
changes, including the addition of teachers of students with 
disabilities and early childhood educators to Sec.  299.18(a)(2), an 
emphasis on evidence-based strategies'' where appropriate, and 
replacing the word ``adequate'' in Sec.  299.18(a)(2) with the term 
``high-quality.'' Another commenter advised the Department to clarify 
that each SEA should describe the efforts it is making in regard to 
each of the requirements in Sec.  299.18(a), in addition to describing 
how it is ensuring that each LEA implements a comprehensive system of 
professional growth and improvement for educators that encompasses 
these efforts. Finally, one commenter asserted that the inclusion of 
State plan requirements related to systems of professional growth and 
improvement is not consistent with the statute and exceeds the 
Department's statutory authority.
    Discussion: The Department appreciates commenters' general support 
for the requirements in proposed Sec.  299.18(a), as well as their 
recommendations for strengthening the final regulations. However, 
because State systems and strategies for educator development, 
retention, and advancement may vary substantially, the Department 
declines to expand the requirements in this area. In addition, we 
anticipate that in response to State and local needs and circumstances 
many SEAs will, for example, address additional categories of educators 
or include evidence-based strategies in their plans. We also note that 
on September 27, 2016, the Department recently published non-regulatory 
guidance for title II, part A: Building Systems of Support for 
Excellent Teaching and Leading available at: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiipartaguidance.pdf (Title II, Part A 
Guidance). Furthermore, the Department will consider additional 
guidance and technical assistance regarding how SEAs can help ensure 
that their systems of educator development, retention, and advancement 
are supporting all educators.
    We agree with the commenter's concern that the term ``adequate 
preparation'' was insufficiently rigorous, and are revising Sec.  
299.18(a)(2) to better reflect our expectations for educator 
preparation programs, including by clarifying that the description 
should describe State strategies to improve teacher preparation 
programs rather than a system of preparation.
    As noted in the regulatory language itself, we believe that 
proposed Sec.  299.18(a) is consistent with sections 2101 and 2102 of 
the ESEA, as amended by the ESSA, and is not outside of the 
Department's statutory authority in section 8302 of the ESEA, as 
amended by the ESSA, to establish the process and criteria for 
submitting a consolidated State plan. Additionally, given that the 
Secretary has general rulemaking authority under GEPA and DEOA, it is 
not necessary for the ESEA, as amended by the ESSA, to specifically 
authorize the Secretary to issue a particular regulatory provision. 
However, we agree that it is important for the final regulations to be 
clear about where uses of funds were permissive, rather than mandatory. 
For this reason and in response to the comments regarding the overall 
burden associated with submitting a consolidated State plan, we are 
revising the language in Sec.  299.18(a) to provide that the required 
descriptions are applicable only to SEAs who intend to use funds under 
one or more of the covered programs for the activities in Sec.  
299.18(a)(1)-(3). Additionally, we are revising Sec.  299.18(a)(3) to 
further clarify that an SEA is permitted, but not required, to include 
a description of how it will work with LEAs in the State to develop or 
implement State or local teacher, principal, or other school leader 
evaluation and support systems.
    Changes: We have revised Sec.  299.18(a) to clarify that it applies 
to each SEA that intends to use funds under one or more of the included 
programs for the activities in Sec.  299.18(a)(1)-(3). We have revised 
Sec.  299.18(a)(2) to reflect that we expect State plans to include 
strategies to improve educator preparation programs. Finally, we have 
revised Sec.  299.18(a)(3) to clarify that an SEA's plan may, but is 
not required to, include a description of how it will work with LEAs in 
the State to develop or implement State or local teacher, principal, or 
other school leader evaluation and support systems.
    Comments: Multiple commenters recommended adding requirements 
related to teacher certification and preparation, including how SEAs 
will ensure that all teachers and paraprofessionals working in title I 
programs meet applicable State certification and licensure 
requirements, incorporating teacher certification into the educator 
equity requirements in Sec.  299.18(c), clarifying the definition of 
certification, requiring specific coursework in teacher preparation 
programs, reporting on teacher preparation programs, and publicly 
reporting the demographics of certified teachers.
    Discussion: We appreciate commenters' interest in clarifying and

[[Page 86200]]

strengthening requirements related to teacher certification and 
preparation in the final regulations. However, the ESEA, as amended by 
the ESSA, recognizes State discretion in determining requirements and 
definitions related to teacher preparation and certification, and we 
decline to limit that discretion in these final regulations.
    We also note that requirements related to teacher preparation 
programs generally are governed by the Higher Education Act of 1965, as 
amended (HEA), rather than the ESEA. The Department recently finalized 
regulations regarding teacher preparation under, available at: http://www.ed.gov/news/press-releases/education-department-releases-final-teacher-preparation-regulations.
    Changes: None.
    Comments: A number of commenters recommended clarifying in Sec.  
299.18 that professional development in the consolidated State plan 
should be consistent with the definition provided in section 8101(42) 
of the ESEA, as amended by the ESSA. Commenters also urged the 
Department to add guardrails around the rigor or professional 
development provided by LEAs, to link teacher and leader development to 
school improvement strategies in State plans, and to promote measuring 
the quality of professional development as part of statewide 
accountability systems. Other commenters encouraged the Department to 
promote a wide range of particular professional development activities 
in the final regulations; including, for example, an emphasis on 
bilingual instruction, involving the Committee of Practitioners in 
setting priorities for professional development, and training on the 
use of strategies to create safe, healthy, and affirming school 
environments.
    Discussion: We agree that the final regulations would be 
strengthened by incorporating the definition of professional 
development in section 8101(42) of the ESEA, as amended by the ESSA, 
and are revising Sec.  299.18(a)(3) accordingly. However, because we 
believe that specific decisions regarding the design and implementation 
of professional development and learning opportunities are best made at 
the State and local level, we decline to highlight particular types of 
professional development or related activities in the final 
regulations. We further note that the Department issued non-regulatory 
Title II, Part A Guidance on the use of title II, part A funds that 
addresses some of the concerns expressed by commenters.
    Changes: We have revised Sec.  299.18(a)(3) to incorporate the 
definition of ``professional development'' in section 8101(42) of the 
ESEA, as amended by the ESSA.
    Comment: One commenter recommended adding a requirement for an SEA 
to describe how it will use title II, part A funds and English learner 
set-aside funds to develop teachers to lead bilingual and dual language 
classrooms.
    Discussion: We appreciate the suggestion to add a description 
regarding how an SEA will use funds to develop teachers to lead 
bilingual and dual language classrooms. As written, the regulations 
provide an SEA with flexibility to describe how it will use funds to 
meet the purpose of title II, part A of the ESEA, as amended by the 
ESSA, which could include developing teachers to lead bilingual and 
dual language classrooms. Because of the general comments regarding 
reducing burden on SEAs submitting a consolidated State plan, we 
decline to prescribe this as a requirement for all SEAs.
    Changes: None.
Sec.  299.18(b) Support for Educators
    Comments: A number of commenters expressed support for the 
provisions in Sec.  299.18(b) aimed at improving instruction by 
increasing the number of effective teachers and school leaders. 
Commenters also recommended the inclusion of strategies to improve 
educators' capacity to create safe and inclusive school environments 
and to address the impact of adversity and stress on students' 
readiness to learn. Other commenters requested a stronger emphasis on 
evidence-based strategies. One commenter urged the Department to 
maintain the proposed language under Sec.  299.18(b) to ensure that 
each State describes how it will work with LEAs to develop or implement 
teacher, principal, and other school leader evaluation and support 
systems. One commenter also recommended that the strategies in Sec.  
299.18(b)(1)(iv) be designed to provide low-income and minority 
students with ``equitable'' rather than ``greater'' access to effective 
teachers, principals, and other school leaders. Finally, one commenter 
requested clarification that the use of Federal funds to improve 
educator evaluation systems is allowable, rather than required.
    Discussion: We appreciate the general support for the proposed 
consolidated State plan requirements related to improving support for 
educators. However, we believe that States should have significant 
discretion in determining the specific focus of their efforts to 
support educators and we decline to include the additional requirements 
suggested by commenters. We also appreciate the lack of a robust 
evidence base in the area of professional development, a factor that 
could make new evidence requirements in this area both burdensome and 
ineffectual. We believe that providing ``greater'' access to effective 
educators is consistent with the statutory purpose of title II in 
section 2001 of the ESEA, as amended by the ESSA, and we note that 
proposed Sec.  299.18(b)(2)(ii) is clear that an SEA must describe 
efforts to support LEAs in developing or implementing educator 
evaluation systems only if Federal funds are used for this purpose.
    However, consistent with commenters' suggestions to clarify the 
connection between Federal funds and certain activities, we have moved 
the requirements that were originally found at proposed Sec.  
299.18(b)(ii) and (iii) to Sec.  299.18(a)(3), where it is clear that 
such activities must be included in State plans only to the extent that 
they are supported with Federal funds.
    Changes: We have revised the final regulations by moving the 
provisions in proposed 299.18(b)(2)(ii) and (iii) regarding educator 
evaluation and support systems and educator preparation programs, 
respectively, to Sec.  299.18(a)(3).
    Comments: Several commenters suggested that we revise proposed 
Sec.  299.18(b)(1)(iv) to add students with disabilities to the groups 
for which SEAs must describe strategies for providing greater access to 
effective teachers, principals, and other school leaders; other 
commenters recommended including the full list of underserved subgroups 
of students addressed by the ESEA, as amended by the ESSA.
    Discussion: The Department agrees that all students should have 
access to effective teachers, principals, and other school leaders. 
However, Sec.  299.18(b)(1)(iv) is based on section 2001 of the ESEA, 
as amended by the ESSA, which focuses teacher equity requirements on 
low-income and minority students. We also note that many, if not most, 
of the students in the other subgroups mentioned by commenters also are 
low-income and minority students. For these reasons, and because adding 
subgroups of students beyond those specified by the statute would add 
considerable burden to the State plan requirements, we decline to 
include additional subgroups of students in the final regulations. 
However, we note that the regulations provide an SEA with the 
discretion to specifically highlight specific subgroups

[[Page 86201]]

of students including students with disabilities, English Learners, 
migratory children, and children and youth in foster care.
    Changes: None.
    Comments: A number of commenters recommended expanding the list of 
subgroups of students in proposed Sec.  299.18(b)(2)(i) for which an 
SEA must describe how it will improve the skills of teachers, 
principals, and other school leaders in identifying students with 
specific learning needs in order to improve instruction based on those 
needs. However, two commenters recommended limiting the list of 
subgroups to those described in section 2101(d)(2)(J) of the ESEA, as 
amended by the ESSA: Children with disabilities, English learners, 
students who are gifted and talented, and students with low literacy 
levels. Other commenters stated that the requirement in proposed Sec.  
299.18(b)(2)(i) was unnecessary and overly burdensome.
    Discussion: We appreciate the different perspectives provided by 
the commenters. After weighing these perspectives, and, in particular, 
in recognition of potential burden of requiring SEAs to address a 
large, one-size-fits-all list of subgroups of students in describing 
their plans for improving the skills of teachers and leaders, we are 
removing the list of student subgroups from this section of the final 
regulations. We believe States should have flexibility, in developing 
their consolidated State plans, to determine the subgroups of students 
with the greatest need for specialized instruction and related school 
leadership.
    Changes: We have revised Sec.  299.18(b)(2)(i) by removing the list 
of specific subgroups of students.
    Comments: Several commenters requested that we specify subgroups of 
teachers and related personnel that an SEA must address in its work to 
support excellent educators, including early childhood educators; 
educators in mediums of instruction other than English; community-based 
educators, such as elders or native and cultural artisans and 
practitioners; and National Board Certified Teachers. One commenter 
noted the importance of including specialized instructional support 
personnel in State systems of professional growth and improvement.
    Discussion: While the Department recognizes the value of a diverse 
education workforce, we decline to prescribe subgroups of educators 
that an SEA must address in its work to support excellent educators. 
The proposed regulations require an SEA describe its strategies to 
support teachers, principals and other school leaders and permit an SEA 
to include educators such as early childhood educators, community-based 
educators, educators in mediums of instruction other than English, and 
SISPs, when discussing its strategies to support educators in its 
State. The consolidated State plan requirements are consistent with 
sections 2101 and 2102 of the ESEA, as amended by the ESSA. An SEA may, 
at its discretion and in response to State and local needs, include 
other educators in its consolidated State plan, but we decline to add 
additional requirements in this area.
    Changes: None.
    Comments: One commenter recommended that the use of the term 
``school leader'' align with the definition of school leader in section 
8101(44) of the ESEA, as amended by the ESSA. Another commenter 
suggested using the word ``and'' instead of ``or'' when referring to 
``teachers and principals or other school leaders.'' Another commenter 
recommended that we revise Sec.  299.18(a)(2) to clarify that teachers, 
principals, and other school leaders are included in the State's system 
to ensure adequate preparation of new educators.
    Discussion: We agree that the phrase ``teachers, principals, and 
other school leaders'' better captures the role of teachers and other 
school leaders. Therefore, with the exception of Sec.  299.18(b)(2) 
which directly incorporates the statutory requirement in section 
2101(d)(2)(J), we are revising the final regulations to incorporate the 
phrase ``teachers, principals, and other school leaders'' consistently 
throughout Sec.  299.18(b). Additionally, we note that school leaders 
is defined in section 8101(44) of the ESEA, as amended by the ESSA, to 
include both principals and other types of school leaders. Moreover, we 
believe it is unnecessary to further specify in Sec.  299.18(a)(2) that 
the preparation programs address teachers, principals, and other school 
leaders because the requirement to describe educator preparation 
programs includes such individuals.
    Changes: We have revised Sec.  299.18(b)(1) to refer to ``teachers, 
principals, and other school leaders.''
Educator Evaluation
    Comments: A number of commenters stated that teacher evaluations 
should not be tied to student test scores. Other commenters expressed 
their support for ending the requirement to link evaluation and test 
scores. A few commenters expressed support for continuing to provide 
teachers with fair evaluations, using test scores, and improving 
teacher assessments.
    Discussion: The final regulations, like the proposed regulations, 
do not include any requirements related to the use of student 
assessment results in educator evaluation systems. However, the 
Department released non-regulatory Title II, Part A Guidance that 
clarifies the statutory requirements for educator evaluation systems 
that are supported by title II, part A funds including the requirements 
in sections 2101(c)(4)(B)(ii) and 2103(b)(3)(A) of the ESEA, as amended 
by the ESSA, that such systems be based in part on evidence of student 
achievement, which may include student growth; include multiple 
measures of educator performance, such as high-quality classroom 
observations; and provide clear, timely and useful feedback to 
educators.
    Changes: None.
Section 299.18(c) Educator Equity
    Comments: Many commenters expressed support for the requirements in 
Sec.  299.18(c) regarding educator equity. In particular, commenters 
appreciated the inclusion of the educator equity provisions within the 
consolidated State plan, the definitions of teacher quality indicators 
in Sec.  299.18(c) and Sec.  200.37, and the clarification of the 
State's authority to ensure that title II, part A funds are used to 
address inequities.
    Discussion: The Department appreciates the expressions of support 
from commenters.
    Changes: None.
    Comment: One commenter noted the impact that an effective school 
leader can have on the effectiveness, satisfaction, and retention of 
teachers. The commenter suggested that we revise the educator equity 
regulations in Sec.  299.18(c) to include language that would allow, 
but not require, an SEA to track the equitable distribution of 
effective and experienced principals and school leaders.
    Discussion: The educator equity requirements in Sec.  299.18(c) 
require an SEA to describe whether low-income and minority students are 
taught at different rates by ineffective, out-of-field, or 
inexperienced teachers consistent with sections 1111(g)(1)(B) of the 
ESEA, as amended by the ESSA. We believe further revisions to Sec.  
299.18(c)(2) are unnecessary because under Sec.  299.18(c)(2)(vi), an 
SEA may, at its discretion and in response to State and local needs, 
include other educators in this description by identifying other 
definitions and key terms it will use for the purpose of meeting this 
requirement.
    Changes: None.

[[Page 86202]]

    Comments: One commenter advised that the Department's use of the 
term ``demonstrate'' in place of the statutory term ``describe'' in 
proposed Sec.  299.18(c) represented a higher standard of review for 
the consolidated State plan, and therefore increased the burden 
associated with the consolidated State plan, as compared to individual 
program plans.
    Discussion: The Department appreciates the commenter's concern and 
is modifying the text of this section to align with the statutory terms 
in section 1111(g)(1)(B) of the ESEA, as amended by the ESSA. In 
response to the comment regarding the burden associated with meeting 
this consolidated State plan requirement, we note that Sec.  
299.13(k)(1)(i) requires an SEA that files an individual title I, part 
A State plan to provide the same description that is required under 
Sec.  299.18(c). Therefore, the burden associated with meeting the 
requirements of section 1111(g)(1)(B) is the same whether an SEA 
submits a consolidated State plan or an individual title I, part A 
State plan under Sec.  299.13(k).
    Changes: We have revised Sec.  299.18(c)(1) and (3) by replacing 
the term ``demonstrate'' with the term ``describe.''
    Comments: A number of commenters requested explicit definitions and 
clear guidelines around the terms ``disproportionality'' and 
``disproportionate rates'' in the final regulations, with some 
commenters recommending that the Department include this information in 
Sec.  200.37 and incorporate it by reference in Sec.  299.18(c)(2)(vi). 
Other commenters specifically recommended defining disproportionality 
as any non-zero difference between the rates at which student subgroups 
are served by ineffective, inexperienced, or out-of-field teachers.
    Discussion: We agree that without additional clarification, it 
would be difficult for SEAs to ensure they are meeting the requirements 
of Sec.  299.18(c)(1); for this reason we are revising the final 
regulations to make clear that throughout Sec.  299.18(c), 
``disproportionality'' refers to the ``differences in rates.'' We are 
also revising Sec.  299.18(c)(5), as renumbered in the final 
regulations, to clarify that different rates mean higher rates, defined 
as greater than zero.
    Changes: We have revised Sec.  299.18(c) to clarify that 
disproportionality refers to the ``differences in rates.'' We have also 
renumbered and revised Sec.  299.18(c)(5) to define disproportionate 
rates as higher rates, defined as greater than zero.
Section 299.18(c)(2) Educator Equity Definitions
    Comments: Some commenters supported having a definition of 
``ineffective teacher'' and provided suggestions for ways to strengthen 
the definition. However, several commenters asked that the Department 
remove the requirement that an SEA establish a statewide definition of 
ineffective teacher. Some of these commenters indicated that requiring 
a definition would result in Federal interference with evaluation 
systems. Other commenters raised concerns that requiring the definition 
would violate statutory prohibitions regarding teacher evaluation 
systems.
    Discussion: Section 1111(g)(1)(B) and (2)(A) of the ESEA, as 
amended by the ESSA, requires each SEA to describe how low-income and 
minority children enrolled in title I schools are not served at 
disproportionate rates by, among other teachers, ``ineffective 
teachers'' and to make public the methods or criteria the State is 
using to measure teacher effectiveness for the purpose of meeting this 
educator equity requirement. The requirements that an SEA provide its 
definition of ``ineffective teacher,'' or its guidelines for LEA 
definitions of ``ineffective teacher,'' and that the definition or 
guidelines differentiate between categories of teachers and provide 
useful information about educator equity, are essential for ensuring 
compliance with this statutory requirement. Without a definition or 
guidelines for local definitions of ``ineffective teachers,'' the 
related data, inequities, and strategies to address inequities 
described by an SEA would be meaningless to the public and to policy 
makers. Accordingly, these requirements constitute a proper exercise of 
the Department's rulemaking authority under GEPA, the DEOA, and section 
8302 of the ESEA, as amended by the ESSA. With respect to comments that 
this requirement violates specific provisions of the statute, section 
1111(e)(1)(B)(iii)(IX) and (X) of the ESEA, as amended by the ESSA, 
provides that ``nothing in this Act shall be construed to authorize or 
permit the Secretary . . . to prescribe (IX) any aspect or parameter of 
a teacher, principal, or other school leader evaluation system within a 
State or LEA, or (X) indicators or specific measures of teacher, 
principal, or other school leader effectiveness or quality.'' However, 
requiring a statewide definition of, or statewide guidelines for LEA 
definitions of, ``ineffective teacher'' in no way constitutes 
prescribing an aspect or parameter of an evaluation system, nor the 
indicators or specific measures of effectiveness or quality.
    With respect to the specific suggestions regarding what should be 
addressed in the definitions of ``ineffective,'' we believe that the 
regulations appropriately ensure that these definitions are developed 
at the State and local level. We further note that the final 
regulations ensure that each SEA determine and make public a 
definition, or provide statewide guidelines to its LEAs to determine a 
definition of ``ineffective.'' Local context and discretion is 
important, and we believe it is critical that States and districts are 
the ones to define the term ``ineffective.'' Therefore, we decline to 
include these recommendations in the regulations.
    Changes: None.
    Comments: Several commenters recommended changes to the 
requirements in the proposed regulations for defining an ``out-of-
field'' teacher, including aligning those requirements with the 
definition used in Sec.  200.37, creating a uniform definition that all 
States must use, and providing flexibility for States to adopt a 
definition that differs from that used for Sec.  200.37.
    Discussion: We note that the requirements for defining an ``out-of-
field teacher'' in Sec.  299.18(c)(2)(ii) are aligned with requirements 
of Sec.  200.37 in both the proposed and final regulations. We further 
note that while there may be some benefits to a uniform definition that 
is comparable across all States and districts, we believe that SEAs 
should have flexibility to develop a statewide definition that reflects 
State and local needs and circumstances. However, we are concerned that 
permitting different definitions under Sec. Sec.  200.37 and 299.18 
could result in masking the number of ``out-of-field'' teachers that 
are teaching in high-need subjects and schools with chronic teacher 
shortages, increasing data collection and reporting burdens for SEAs 
and LEAs, and reducing transparency for educators and the public alike.
    Changes: None.
    Comments: A number of commenters recommended specific definitions 
of ``inexperienced teacher'' in Sec.  299.18(c)(2)(iii), including 
alignment with the requirements of Sec.  200.37 and uniformity across a 
State.
    Discussion: Similar to the requirements for defining an ``out-of-
field'' teacher, we note that the requirements for defining an 
``inexperienced'' teacher in

[[Page 86203]]

Sec.  299.18(c)(2)(iii) are aligned with the requirements of Sec.  
200.37 in both the proposed and final regulations. While we appreciate 
the specific definitions recommended by commenters, we believe that 
SEAs should have flexibility to develop or adopt definitions that 
reflect State and local needs and circumstances. We agree with 
commenters that further guidance on the definitions required by Sec.  
299.18(c) may be helpful and will consider providing such guidance at a 
future time.
    Changes: None.
    Comments: None.
    Discussion: After review of proposed Sec.  299.18(c)(2), which 
required the educator equity definitions ``to provide useful 
information about educator equity and disproportionality rates,'' we 
determined that the placement of the phrase was too broad and 
potentially confusing to SEAs. As a result, we are clarifying that the 
phrase ``to provide useful information about educator equity and 
disproportionality rates'' was only intended to apply to the three 
teacher characteristics.
    Changes: We have revised Sec.  299.18(c)(2)(i)-(iii) by adding the 
phrase ``and provides useful information about educator equity'' to all 
three required teacher characteristic definitions.
    Comments: Several commenters supported the use of ``distinct 
criteria'' in establishing the definitions required by Sec.  
299.18(c)(2), with some commenters also recommending various options 
for strengthening this requirement, including, for example, limiting 
the measures that may be used to define each term or allowing 
definitions to share certain criteria.
    Discussion: We appreciate the support of commenters, as well as 
their interest in strengthening the final regulations. However, we note 
that section 1111(e)(1)(B)(iii)(X) of the ESEA, as amended by the ESSA, 
prohibits the Secretary from prescribing indicators or specific 
measures of teacher, principal, or other school leader effectiveness or 
quality. In light of this prohibition, we decline to further specify or 
limit the measures that may be used by an SEA in establishing the 
definitions required by Sec.  299.18(c)(2).
    We further clarify that the regulations are intended to ensure that 
each definition is be wholly unique and based on entirely different 
criteria. That is, an SEA may not use part of any definition for each 
of the terms ``ineffective,'' ``inexperienced,'' or ``out-of-field'' in 
defining each of the other terms. We believe that this requirement is 
necessary and appropriate to ensure that each of these terms is defined 
in a manner that reflects the statutory intent of providing three 
unique pieces of information on teacher characteristics related to 
ensuring equitable access to effective teaching. Additionally, allowing 
an SEA to use a part of a definition for one particular term in the 
definition of another term is likely to impact the ability of the data 
to provide useful information about educator equity.
    Changes: None.
    Comments: A number of commenters recommended that we revise the 
proposed regulation in Sec.  299.18(c), which requires SEAs to 
determine the differences in rates at which low-income and minority 
students are taught by ineffective, out-of-field, or inexperienced 
teachers, to include additional student subgroups, including children 
with disabilities, English learners, and rural students. One commenter 
recommended that we also revise Sec.  299.18(c)(3)(ii), which permits 
an SEA to calculate and report the rates at which students represented 
by other key terms are taught by ineffective, out-of-field, and 
inexperienced teachers, to clarify that ``students represented by any 
other key terms'' may include children with disabilities, English 
learners, and rural students.
    Discussion: The Department recognizes that, in some cases, other 
subgroups of students are being taught at disproportionate rates by 
ineffective, out-of-field, or inexperienced teachers, and Sec.  
299.18(c)(2)(vi) and (3)(ii) permit an SEA to include other subgroups 
of students when calculating such rates. However, requiring, rather 
than permitting, such analyses for other subgroups of students would 
not be consistent with section 1111(g)(1)(B) of the ESEA, as amended by 
the ESSA, which focuses solely on low-income and minority children.
    Changes: None.
Section 299.18(c)(3) Educator Equity Rates and Student-Level Data 
Requirement
    Comments: Some commenters expressed general support for student-
level data requirements in proposed Sec.  299.18(c)(3)(i) to report the 
rates described in Sec.  299.18(c)(1) ``based on student-level data.'' 
Commenters stressed the importance of evaluating within-school 
inequities in students' access to effective teaching, in addition to 
between school inequities, and that such an analysis requires the 
collection of student-level data. However, a few commenters suggested 
removing the student-level data requirement stating that the 
requirement is burdensome and not justified in the ESEA, as amended by 
the ESSA. Commenters also requested clarification on what constitutes 
student-level analysis.
    Discussion: We appreciate commenters' support for requiring the 
collection and reporting of student-level data to meet the educator 
equity requirements of section 1111(g)(1)(B) of the ESEA, as amended by 
the ESSA. Student-level data are necessary to evaluate inequities 
within schools and to determine the relationship between specific 
student and teacher characteristics.
    One study \29\ examined how a sample of districts with high low-
income, minority populations implemented policies for distributing 
effective teachers equitably. This two-year study found that a low-
income student was more than twice as likely to have a less effective 
teacher as a higher income peer, and 66 percent more likely to have a 
less effective math teacher. The patterns were even more pronounced for 
students of color, with Latino and African-American students two to 
three times more likely (in math and reading/language arts, 
respectively) to have bottom-quartile teachers than their white and 
Asian peers.
---------------------------------------------------------------------------

    \29\ Learning Denied: The Case for Equitable Access to Effective 
Teaching in California's Largest School District. Oakland, CA: The 
Education Trust West, 2012. http://edtrust.org/wp-content/uploads/2013/10/ETW-Learning-Denied-Report_0.pdf.
---------------------------------------------------------------------------

    Another multi-site, multi-year study \30\ conducted by RAND 
Corporation found that when policies for distributing effective 
teachers equitably were implemented in a sample of districts with high 
low-income minority (LIM) populations, effective teachers were 
generally more likely to be assigned to those schools with higher 
proportions of low-income and minority students than other schools, 
but, within a school, effective teachers were generally less likely to 
be assigned to classes with higher proportions of low-income minority 
students than to other classes. That is, the most-effective teachers 
were placed in schools with high percentages of low-income minority 
students, but they were not placed in high-LIM classrooms within those 
schools. This suggests that improving low-income minority students' 
access to effective teachers requires efforts to ensure within-school 
access to effective teachers in addition to between-school access.
---------------------------------------------------------------------------

    \30\ Baird, Matthew D., John Engberg, Gerald Hunter and Benjamin 
Master. Trends in Access to Effective Teaching: The Intensive 
Partnerships for Effective Teaching Through 2013-2014. Santa Monica, 
CA: RAND Corporation, 2016. http://www.rand.org/pubs/research_briefs/RB9907.html.

---------------------------------------------------------------------------

[[Page 86204]]

    Though some commenters suggested removing the student-level data 
requirement altogether, the Department has determined that requiring 
student-level data is not only justified, but indeed, necessary to 
ensure compliance with the statutory requirement in section 
1111(g)(1)(B) of the ESEA, as amended by the ESSA, that an SEA describe 
how low-income and minority children enrolled in schools assisted under 
title I, part A are not served at disproportionate rates than other 
children in the State by ineffective, out-of-field and inexperienced 
teachers. Because the required analysis is of the rates at which 
particular groups of children are served by teachers, and not the rates 
at which particular schools are served by teachers, requiring SEAs to 
use student-level data to inform the required description in order to 
ensure that they meet the statutory requirement constitutes a proper 
exercise of the Department's rulemaking authority.
    We appreciate commenters' suggestions regarding clarification of 
how to implement the student-level data requirement and note that the 
Department plans to provide technical assistance and other support in 
this area, building in part on best practices from States already 
collecting and reporting student-level data.
    Changes: None.
    Comments: A few commenters recommended aligning the language in the 
requirement in Sec.  299.18(c)(3)(ii) regarding the use of student-
level data by SEAs who choose to examine differences in rates for other 
student groups, with the student-level data requirement in Sec.  
299.18(c)(3)(i) for required student groups.
    Discussion: We decline to align the language because section 
1111(g)(1)(B) only requires an SEA to provide educator equity data for 
low-income and minority students. If an SEA chooses to examine 
differences in rates for other student groups, an SEA has flexibility 
in determining the level of data to use in that analysis.
    Changes: None.
    Comments: Some commenters questioned whether the student-level data 
requirement, including the option of a two-year extension for the 
reporting of student-level data under proposed Sec.  299.13(d)(3), 
conflicts with section 2104(a) of the ESEA, as amended by the ESSA, 
which prohibits the Department from requiring the collection and 
reporting of any data on the retention rates of effective teachers that 
was not available on the day before ESSA was enacted.
    Discussion: We do not believe that the proposed regulations 
implementing section 1111(g)(1)(B) of the ESEA, as amended by the ESSA, 
conflict with section 2104(a) of the ESEA. More specifically, the rule 
of construction in section 2104(a)(4) of the ESEA, as amended by the 
ESSA, which limits the collection of data on the retention rates of 
ineffective and effective teachers to data elements collected prior to 
enactment of the ESSA, applies only to the title II, part A, reporting 
requirement regarding teacher retention, and there is no similar rule 
applicable to section 1111(g)(1)(B) of the ESEA, as amended by the 
ESSA.
    Changes: None.
    Comments: Several commenters expressed that the proposed comparison 
of rates--between low-income and minority students enrolled in schools 
receiving title I, part A funds and non-low-income and non-minority 
students enrolled in schools not receiving title I, part A funds--would 
yield little useful information in a State where the majority of 
schools receive title I, part A funds. Some commenters also asserted 
that the statutory language requires that low-income students and 
minority students at schools receiving title I, part A funds be 
compared to all non-low-income students and non-minority students at 
any school, regardless of that school's receipt or non-receipt of title 
I, part A funds, and recommended revising the final regulations 
consistent with this interpretation of the statute. Other commenters 
cited what they described as the inconsistency of proposed in Sec.  
299.18(c) with the report card requirement in Sec.  200.37, which calls 
for disaggregation of teacher qualification data between high- and low-
poverty schools. Similarly, one commenter suggested revising the 
proposed comparison groups to focus on high- and low-poverty schools 
(using the Sec.  200.37 definition) and high- and low-minority schools 
(defined as schools in the top and bottom quartile for minority student 
enrollment). Finally, several commenters expressed concern that the 
proposed comparison groups would not help identify or address between-
school or within-school inequities.
    Discussion: Section 1111(g)(1)(B) of the ESEA, as amended by the 
ESSA, specifically requires that SEAs describe how low-income and 
minority children ``enrolled in schools assisted under this part'' are 
not served at disproportionate rates by certain teachers. Based on this 
language, we proposed comparison groups that we believe will be most 
likely to illuminate inequities with respect to the students identified 
by the statute. Although we appreciate the difficulties of making this 
comparison in a State or an LEA in which the majority of schools 
receive title I, part A funds, we believe that an alternative 
comparison group comprised of all schools in the State would be 
inconsistent with the statutory language prescribing the groups of 
students for whom disproportionate rates must be described. Further, 
such a comparison group would mask the differences in rates at which 
low-income and minority students enrolled in schools receiving title I, 
part A funds and their peers are taught by certain teachers. Requiring 
a comparison between high-poverty and low-poverty schools identified 
for purposes of compliance with Sec.  200.37 would likewise be 
inconsistent with the statutory requirement in section 1111(g)(1)(B) of 
the ESEA, as amended by the ESSA, because a State's high-poverty school 
quartile does not necessarily include all of a State's title I, part A 
schools. Accordingly, we have maintained the proposed comparison groups 
in these final regulations.
    With respect to commenters' concern that the selected comparison 
group would not sufficiently illuminate between-school or within-school 
inequities, as discussed above in the Student-level Data Requirement 
discussion and below in the Section 299.18(c)(5) Causes of and 
Strategies to Address Differences in Educator Equity Rates discussion, 
we have retained the student-level data requirement in Sec.  
299.18(c)(3)(i) and amended Sec.  299.18(c)(5)(i) to replace root cause 
analysis with ``likely causes'' including an analysis of within-school 
differences in rates to ensure that between-school or within-school 
inequities are considered.
    Changes: None.
Section 299.18(c)(5) Causes of and Strategies To Address Differences in 
Educator Equity Rates
    Comments: Multiple commenters stated that the requirement that SEAs 
conduct a ``root cause analysis'' in proposed Sec.  299.18(c)(6)(i) is 
confusing, unnecessary, and overly prescriptive, with some commenters 
recommending that determinations regarding the appropriate level and 
method of analysis be left to SEAs. Another commenter recommended that 
the Department specifically require that an SEA analyze the extent to 
which disparities between LEAs within the State, between schools within 
LEAs, and within schools contribute to any statewide disparity, and 
then examine the causes of any disparity at each level.
    Discussion: While the Department believes that it is necessary and 
appropriate for SEAs to determine the likely causes of the identified

[[Page 86205]]

differences in the rates at which certain subgroups of students are 
taught by teachers with certain characteristics, our inclusion of the 
term ``root cause analysis'' was not intended to specify a particular 
methodology for determining such causes, and we are revising the final 
regulations to eliminate this term. We also are revising the language 
in the renumbered Sec.  299.18(c)(5)(i) to clarify that an SEA must 
determine the likely causes of the most significant differences in the 
rates at which certain subgroups of students are taught by teachers 
with certain characteristics. To provide further clarity, we added 
examples of such causes. We have also aligned the language in Sec.  
299.18(c)(5)(i) with the Department's May 2015 non-regulatory guidance 
regarding State Plans to Ensure Equitable Access to Excellent Educators 
so that the regulations now incorporate language with which SEAs are 
familiar. In so doing, we have clarified the requirement and minimized 
the burden it imposes on SEAs by incorporating the guidance language 
that SEAs previously relied upon when developing educator equity plans 
in 2015.
    We also agree with the commenter who advised that, to maximize the 
benefits associated with student-level data, the Department require 
that an SEA analyze the extent to which disparities at different levels 
contribute to the statewide differences in rates, and the causes of the 
disparities at each of those levels. As discussed in the student-level 
data discussion above, the benefits associated with calculating and 
reporting student-level data statewide are substantial because it 
illuminates within-school disparities; accordingly, we have amended 
this portion of the regulation to take advantage of the student-level 
data requirement in Sec.  299.18(c)(3).
    Changes: We have revised and renumbered Sec.  299.18(c)(5)(i) to 
replace the phrase ``root cause analysis'' with ``identify the likely 
causes'' and clarified that SEAs need only identify the likely causes 
of the most significant differences in rates.
    We have further revised Sec.  299.18(c)(5)(i) to clarify that an 
SEA must identify whether the differences in rates at which certain 
student subgroups are taught by teachers with certain characteristics 
reflect differences between districts, within districts, and within 
schools, as well as the likely causes of those differences in rates, 
for example: Teacher shortages, working conditions, school leadership, 
compensation, or other factors.
    Comments: Some commenters expressed support for the requirement 
that SEAs prioritize efforts aimed at reducing the extent to which low-
income and minority students are taught at disproportionate rates by 
ineffective, out-of-field, or inexperienced teachers in schools 
identified for comprehensive or targeted support and improvement.
    Other commenters recommended allowing States to prioritize 
strategies focused on the teacher attribute with the most negative 
effects on student outcomes; for example, if State data showed that 
student performance suffered the most from inexperienced teachers, an 
SEA could elect to focus its efforts on reducing students' 
disproportionate exposure to inexperienced teachers.
    Discussion: We appreciate commenters' support for the requirement 
that SEAs prioritize efforts aimed at eliminating disproportionalities 
in schools identified for comprehensive or targeted support. Further, 
we appreciate commenters' recommendation to include additional options 
for prioritization. We agree that this may be an important approach to 
lessening the differences in rates and are revising the regulatory 
language to allow an SEA additional flexibility to provide in its State 
plan strategies for the most significant differences in rates as 
described by the SEA.
    Changes: We have revised Sec.  299.18(c)(5) to allow SEAs to 
prioritize strategies to address the most significant differences in 
rates as identified by the SEA.
    Comments: One commenter supported the proposed requirement that an 
SEA include in its State plan the timelines and funding sources for its 
strategies to address inequitable access to excellent educators.
    Discussion: We agree with the commenter that an SEA must provide 
timelines and funding sources to ensure successful implementation of 
its strategies to address inequitable access to effective educators and 
are retaining this requirement in the final regulations. Additionally, 
we are clarifying that an SEA must describe whether Federal or non-
federal funds will support the identified strategies.
    Changes: We have clarified Sec.  299.18(c)(5)(ii) to require each 
SEA to describe whether Federal or non-federal funds will support its 
educator equity strategies.
Progress Targets and Monitoring
    Comments: Some commenters requested additional detail in proposed 
Sec.  299.18(c)(6) on how each SEA planned to monitor its progress in 
eliminating any disproportionate rates at which low-income and minority 
children are served by ineffective, out-of-field, or inexperienced 
teachers. Commenters encouraged the Department to define ``progress'' 
and require clear goals, timelines, and progress targets. Commenters 
also suggested requiring SEAs to describe the manner in which the State 
will monitor and support LEA efforts to eliminate such disparities.
    Discussion: Section 1111(g)(1)(B) of the ESEA, as amended by the 
ESSA, requires each SEA to describe how low-income and minority 
children enrolled in title I, part A schools will not be served at 
disproportionate rates by ineffective, out-of-field, or inexperienced 
teachers. Therefore, if an SEA identifies any difference in rates, the 
SEA must work to eliminate the difference in rates. Consequently, we 
agree with commenters that to effectively eliminate a difference in 
rates, it is important to establish clear goals towards eliminating any 
differences in rates and report progress towards those goals, and we 
are revising the final regulations accordingly.
    Changes: In renumbered Sec.  299.18(c)(5)(iii), we have added a 
requirement for each SEA to describe timelines and targets for 
eliminating any differences in rates at which low-income and minority 
students enrolled in title I, part A schools served by inexperienced, 
out-of-field, and ineffective teachers.
Other Educator Equity Issues
    Comments: Some commenters asserted that the phrase ``or statewide 
guidelines for district definitions of ineffective teacher'' in Sec.  
299.18(c)(2)(i) effectively permits States where districts do not 
provide teacher appraisal data to the State, or where the provision of 
such data is prohibited by State law, to comply with the statute.
    Other commenters claimed that requiring SEAs to define and report 
on ``ineffective teachers'' inherently requires State evaluations that 
include an indicator for effectiveness, which commenters assert is 
prohibited in the ESEA, as amended by the ESSA.
    Other commenters asserted that the requirements in Sec.  
299.18(c)(2)(v) must not violate individual privacy rights of teachers. 
Commenters noted that educator evaluation data are protected by law in 
some States, and claimed that reporting information required by the 
proposed regulation is prohibited. Commenters recommended that 
publication of data must be consistent with State and Federal privacy 
laws and principles, in addition to any other policies regarding the 
confidentiality of personnel information, and should not

[[Page 86206]]

allow publication of data that is personally identifiable of individual 
teachers.
    Discussion: The phrase ``or Statewide guidelines for LEA 
definitions of ineffective teacher'' in Sec.  299.18(c)(2)(i) does not 
provide an exception to the requirement for reporting uniform teacher 
effectiveness data to the State; rather, this phrase gives SEAs the 
flexibility to allow variance in LEA definitions of ``ineffective 
teacher'' so long as each LEA complies with the statewide guidelines. 
Although commenters asserted that certain State laws prohibit local 
entities from providing teacher appraisal data to the State entity, an 
SEA receiving title I, part A funds is required to report on 
ineffective, out of field, or inexperienced teachers in order to comply 
with section 1111(g)(1)(B) of the ESEA, as amended by the ESSA. 
Further, to meet the requirements in Sec.  299.18(c) an LEA may report 
aggregate numbers without any personally identifying information.
    As discussed earlier, we do not agree that requiring each SEA to 
define and report on ineffective teachers is prohibited by the ESEA, as 
amended by the ESSA, because it is necessary for meeting the 
requirements of section 1111(g)(1)(B) of the ESEA. Further, consistent 
with the statutory provision in section 1111(e)(1)(B)(iii)(X), the 
final regulations, like the proposed regulations, require SEAs to 
establish their own definitions of ``ineffective teacher'' and do not 
prescribe the use of any specific definition.
    We agree with commenters that the requirements in Sec.  
299.18(c)(2)(v) must not violate individual privacy rights of teachers. 
Section 1111(i)(1) of the ESEA, as amended by the ESSA, specifies that 
``information shall be collected and disseminated in a manner that 
protects the privacy of individuals consistent with section 444 of GEPA 
(20 U.S.C. 1223g, commonly known as [FERPA]) and this Act.'' Consistent 
with these requirements, we are revising the final regulations to 
clarify that reporting under Sec.  299.18(c) must be consistent with 
FERPA. Commenters noted that evaluation data are protected by law in 
some States, and claimed that reporting information required by the 
proposed regulation is prohibited. However, this is not the case 
because there is no requirement that any of these data be personally 
identifiable.
    Changes: We have revised Sec.  299.18(c)(4) by adding a provision 
clarifying that when publishing and reporting educator equity 
information in Sec.  299.13(c)(1)(iii), SEAs must comply with FERPA, 20 
U.S.C. 1232g, and applicable regulations.
    Comments: One commenter asked that the Department include a savings 
clause which would allow collective bargaining agreements and State 
laws that already define the statutory terms in Sec.  299.18(c) to 
remain intact and enforceable even given the requirements in Sec.  
299.18(c).
    Discussion: The Department does not believe that a savings clause 
to accommodate collective bargaining agreements or State laws is 
necessary because an SEA has discretion in defining the statutory terms 
related to ineffective, inexperienced, or out-of-field teachers, 
consistent with Sec.  299.18(c). Accordingly, an SEA should have 
sufficient flexibility to define these terms consistent with State law 
and in ways that do not violate collective bargaining agreements.
    Changes: None.
    Comments: Several commenters requested that the Department protect 
charter school autonomy by preserving the ability of charter schools to 
hire teachers that meet the needs of their students, consistent with 
State charter school law. These commenters recommended the final 
regulations clarify that State definitions of ineffective, 
inexperienced, or out-of-field teachers, as they apply to charter 
schools, must defer to State charter school law. Furthermore, 
commenters asked that the Department include language clarifying that 
SEAs must carry out the requirements under Sec.  299.18(c) and Sec.  
200.37, as they affect teachers in charter schools, in a manner 
consistent with State charter schools law and all other State laws and 
regulations governing public school teacher evaluation.
    Discussion: As a condition of receiving title I, part A funds, an 
SEA must ensure compliance with all applicable statutory and regulatory 
requirements, including the requirements in section 1111(g)(1)(B) of 
the ESEA, as amended by the ESSA, and Sec.  299.18(c) of these final 
regulations. We note that under the final regulations, each SEA and, in 
the case of the term ``ineffective teachers'' in States that elect to 
provide LEAs with statewide guidelines for defining this term in lieu 
of providing a statewide definition, districts, have substantial 
latitude in defining the terms ineffective, inexperienced, and out-of-
field in a manner that is consistent with State charter schools law and 
all other State laws and regulations governing public school teacher 
evaluation.
    Changes: None.
Section 299.18(c)(6) State Authority To Deny LEA Plans and Direct LEA 
Use of Title II, Part A Funds
    Comments: Two commenters expressed strong support for the 
Department's proposal to permit an SEA to direct an LEA to use a 
portion of its title II, part A funds to provide low-income and 
minority students greater access to effective teachers and to require 
an LEA to describe in its title II, part A plan how it will use such 
funds to address any differences in rates at which certain subgroups of 
students are taught by teachers with certain characteristics and to 
deny approval of the plan if an LEA fails to do so.
    Discussion: The Department appreciates commenters support for these 
provisions.
    Changes: None.

Section 299.19 Supporting All Students

Ensuring All Students Have the Opportunity To Meet State Standards
    Comments: Some commenters expressed support for the requirement in 
proposed Sec.  299.19(a) that each SEA describe how it will ensure that 
all students have a significant opportunity to meet its challenging 
State academic standards and career and technical education standards, 
as applicable. Some of these commenters requested that the Department 
require each SEA to describe how it will incorporate additional, 
specific strategies in its efforts to support students in meeting such 
standards, including personalized learning, expanded learning time, and 
early developmental and behavioral screening. Further, one commenter 
requested that the Department extend the continuum of a student's 
education covered under Sec.  299.18 college and career.
    Other commenters suggested that the Department include additional 
requirements in Sec.  299.19, such as consultation requirements 
specific to this section; efforts to engage families of traditionally 
underserved students; and reporting on equitable access to a well-
rounded coursework.
    Other commenters stated that the proposed requirements in Sec.  
299.19(a) were overly burdensome and were not necessary to consider a 
consolidated State plan under section 8302 of the ESEA, as amended by 
the ESSA.
    Discussion: The Department appreciates commenters' support of the 
requirements in proposed Sec.  299.19(a). However, to streamline and 
reduce burden in the preparation of consolidated State plans, we are 
revising the requirements in Sec.  299.19(a)

[[Page 86207]]

to focus on the use of funds for title IV, part A and other included 
programs to support the continuum of a student's education and provide 
equitable access to a well-rounded education and rigorous coursework. 
We also are revising Sec.  299.19(a)(1) to ensure that each SEA 
supports LEAs doing this work, as well the remaining subsections in 
Sec.  299.19(a) to require descriptions of the SEA's strategies for 
school conditions, technology, and parent engagement to the extent that 
an SEA intends to use Federal funds for such purposes which may have 
significant benefit to students.
    Consistent with this effort to streamline requirements in Sec.  
299.18(a), we also decline to include additional strategies in the 
required descriptions of SEA activities and plans or to extend the 
continuum of education covered by such plans beyond grade 12. However, 
we note that Sec.  299.19(a)(1)(i) continues to require an SEA to 
describe how it will support a student's transition beyond high school. 
We also believe that consultation related to Sec.  299.19(a) is 
adequately addressed by the consultation requirements in Sec.  
299.15(a) that requires that each SEA to consult with stakeholders on 
each component of the consolidated State plan. Further, the Stakeholder 
DCL provides recommendations on how States can meaningfully engage with 
stakeholders, including strategies to ensure engagement with parents of 
students from socioeconomically diverse backgrounds, parents of 
students from subgroups identified by the ESEA, as amended by the ESSA, 
and parents of students with disabilities. The Stakeholder DCL is 
available at http://www2.ed.gov/policy/elsec/guid/secletter/160622.html. Similarly, existing reporting requirements in section 
1111(h)(1)(viii) and (2)(C) of the ESEA, as amended by the ESSA, 
address some aspects of equitable access to coursework and we decline 
to expand those requirements in the final regulations.
    Changes: We have revised Sec.  299.19(a)(1) to focus on the use of 
funds provided under title IV, part A and other included programs to 
support the continuum of a student's education and provide equitable 
access to a well-rounded education and rigorous coursework. We also 
have revised Sec.  299.19(a)(2) to require an SEA to provide 
descriptions of its strategies only if it intends to use funds from 
title IV, part A funds or included programs for the specific activities 
detailed in paragraph (a)(2).
Arts
    Comments: Many commenters requested that the Department include 
``arts'' in the list of subjects described under proposed Sec.  
299.19(a)(1)(ii) regarding equitable access to a well-rounded education 
and rigorous coursework.
    Discussion: The proposed regulations inadvertently omitted ``arts'' 
from the list of subjects in Sec.  299.19(a)(1)(ii). We are revising 
the final regulations to correct this omission.
    Changes: We have revised Sec.  299.19(a)(1)(ii) to include ``arts'' 
in the list of subjects included in a well-rounded education.
School Conditions
    Comments: Many commenters requested that the Department expand and 
further define the requirements in proposed Sec.  299.19(a)(1)(iii) 
regarding school conditions for student learning, including, for 
example, a definition for the ``overuse'' of discipline practices and 
``aversive behavioral interventions, '' adding examples of such 
interventions, and describing strategies to create safe, healthy, and 
affirming school environments inclusive of all students.
    Discussion: The requirement in Sec.  299.19(a)(1)(iii) is 
consistent with section 1111(g)(1)(C) of the ESEA, as amended by the 
ESSA. We appreciate the suggestions and underscore the importance of 
ensuring that all students have access to a safe and healthy learning 
environment. In recent years, the Department has released guidance and 
numerous resources that describe best practices to improve school 
climate and school discipline, as well as guidance on how schools can 
meet their obligations under Federal law to administer student 
discipline without discriminating on the basis of race, color, or 
national origin (for example, see http://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html). We believe this requirement will 
ensure that an SEA works with its LEAs to implement locally designed 
activities to promote school conditions for student learning. We also 
agree that specific strategies related to safe, healthy, and affirming 
school environments for all students are essential to improve school 
conditions and are revising this regulation accordingly.
    Changes: We have revised Sec.  299.19(a)(2)(i) to require each SEA 
using funds for this purpose to describe strategies to improve school 
conditions that create safe, healthy, and affirming school environments 
inclusive of all students.
Effective Use of Technology
    Comments: A few commenters recommended that the Department ensure 
that all students, including for students with disabilities, have 
access to computers and broadband internet connections because many 
jobs in the future will have a science, technology, engineering, and 
mathematics (STEM) component. Another commenter noted that the statute 
only requires SEAs to describe how they will support LEAs, rather than 
requiring an SEA to describe its strategies. The commenter recommended 
that we revise the language in proposed Sec.  299.19(a)(1)(iv) to more 
closely reflect the statutory language.
    Discussion: We agree that access to the computers and the internet 
is an important part of a high-quality education and supports STEM 
education for all students. We also agree that the final regulations 
should be more closely aligned with statutory requirements. For these 
reasons, we are revising the final regulations to require an SEA to 
describe how it will support LEAs to effectively use technology only if 
the SEA is proposing to use funds under one or more of the included 
programs for that purpose. We also are revising Sec.  299.19(a) to 
focus on SEA support for LEA efforts to use technology effectively.
    Changes: We have revised Sec.  299.19(a)(2) to require an SEA to 
describe its strategies to support LEAs to effectively use technology 
to improve academic achievement only if the State is proposing to use 
funds under one or more of the included programs for that purpose.
Accurate Identification of Children With Disabilities and English 
Learners
    Comments: One commenter noted the importance of identifying 
disabilities early in a child's educational experience. The commenter 
recommended that we revise proposed Sec.  299.19(a)(1)(vi) to add that 
the identification of children with disabilities includes the early 
identification of children with disabilities.
    Discussion: We agree with the commenter that the early 
identification of students with disabilities is critical and results in 
the provision of required special education and related services to 
eligible children as early as possible in the course of their 
education. However, because the importance of, and timely and accurate 
identification of eligible children with disabilities is already 
addressed in the IDEA and its implementing regulations, the

[[Page 86208]]

Department has determined that including similar requirements in these 
final regulations would be unnecessarily duplicative and burdensome. 
Consequently, the final regulations would instead require an assurance 
in Sec.  299.14(c)(5) that the SEA has policies and procedures in 
effect regarding the appropriate identification of children with 
disabilities consistent with the child find and evaluation requirements 
in section 612(a)(3) and (a)(7) of the IDEA, respectively. This 
assurance is necessary to ensure the purpose of section 1001 of the 
ESEA, as amended by the ESSA, is met ``to provide all children a 
significant opportunity to receive a fair, equitable and high quality 
education'' and to coordinate title I, part A activities under section 
1111(a)(1)(B) with federal programs, including Part B of the IDEA.
    The appropriate identification of students with disabilities is 
addressed in the IDEA and its implementing regulations in sections 
612(a)(3) and (a)(7) and 614(a)-(c) and 34 CFR 300.111, 300.122, and 
300.300-300.311. In order to be eligible for an IDEA Part B grant, a 
State is required to submit a plan that provides assurances that the 
State has in effect policies and procedures to ensure that the State 
meets specific conditions prescribed in section 612 of the IDEA, 
including that all children with disabilities residing in the State, 
regardless of the severity of their disabilities, and who are in need 
of special education and related services, are identified, located, and 
evaluated in accordance with applicable IDEA Part B requirements. These 
requirements are designed to ensure that eligible children are 
appropriately identified and provided required special education and 
related services in a timely manner.
    Proposed Sec.  299.19(a)(1)(vi) also required the accurate 
identification of English learners which unnecessarily duplicated other 
statutory and regulatory requirements, including section 3113(b)(2) of 
the ESEA, as amended by the ESSA, and Sec.  299.13(c)(2) of these final 
regulations.
    Changes: We have revised Sec.  299.19(a)(1) by removing the 
requirement that each SEA address the accurate identification of 
children with disabilities and English learners. We have added an 
assurance in Sec.  299.14(c)(5) regarding the appropriate 
identification of children with disabilities.
Subgroups of Students Whom States Must Address
    Comments: Several commenters supported the inclusion of particular 
subgroups in proposed Sec.  299.19(a)(2)(i), such as students in foster 
care, homeless children and youth, and children with disabilities, 
while others recommended the addition of other groups of vulnerable 
students, including those aligned with eligible in-school youth 
definitions under WIOA and students taught primarily through Native 
American languages. However, other commenters expressed concern about 
the burden associated with addressing the needs of the required 
subgroups in State plans.
    Discussion: We appreciate the commenters' support for proposed 
Sec.  299.19(a)(2)(i). While an SEA may choose to address the needs of 
additional subgroups of students in its State plan, we decline to 
include additional subgroups in the final regulations, in part because 
we believe most, if not all, of the students in the additional 
subgroups proposed by commenters are likely to be captured by one or 
more of the existing subgroups in final Sec.  299.19(a)(1)(iii). In 
response to concerns about administrative burden, we note that while an 
SEA must address the needs of each subgroup in Sec.  299.19(a)(1)(iii), 
it does not have to address each subgroup of students individually; for 
example, it may use a single strategy to address the needs of multiple 
subgroups.
    Changes: None.
Physical Education
    Comments: One commenter recommended that the Department provide 
guidance regarding use of title IV, part A funds to support physical 
education.
    Discussion: The Department will be issuing guidance on allowable 
uses of title IV, part A funds, including use of these funds to support 
physical education.
    Changes: None.
Title I, Part C Priority for Services Requirements
    Comments: None.
    Discussion: Based on further internal review, we have determined 
that the proposed requirement in Sec.  299.19(c)(2)(v) for each SEA to 
describe its processes and procedures when implementing priority for 
services for migratory students under section 1304(d) of the ESEA, as 
amended by the ESSA, would place an unnecessary burden on SEAs. Under 
the final regulations, each SEA must describe the measures and data 
sources used in making priority for services determinations, as well as 
when and how such determinations will be communicated on a statewide 
basis, but it will not be required to describe how it will delegate 
responsibilities for documenting such determinations and the provision 
of services. Finally, the Department is aligning the requirement in 
Sec.  299.19(b)(2)(v) to the statutory requirement in section 
1304(b)(4) of the ESEA, as amended by the ESSA. The description in 
final Sec.  299.19(b)(2)(v) is more limited because the SEA is required 
to only describe its priorities for the use of title I, part C funds 
related to the needs of migratory children with ``priority for 
services.''
    Changes: We have revised Sec.  299.19(b)(2)(v) to require each SEA 
to describe only its priorities for the use of title I, part C funds 
related to the needs of migratory children with ``priority for 
services,'' including (1) the measures and sources of data the SEA, and 
if applicable, its local operating agencies (LOAs), which may include 
LEAs, will use to identify which migratory children are a priority for 
services; and (2) when and how the SEA will communicate those 
determinations to all LOAs in the State.
Title III, Part A Standardized Entrance and Exit Procedures for English 
Learners
    Comments: Some commenters generally supported proposed Sec.  
299.13(c)(3), including the requirement that criteria to determine a 
student's placement in or exit from English learner status be applied 
consistently across LEAs in a State. While supporting proposed Sec.  
299.13(c)(3) generally, other commenters requested clarification of 
some of the provisions in proposed Sec.  299.13(c)(3), including their 
application to both entrance and exit criteria, assurances related to 
criteria other than ELP assessment results, the input of local 
educators on exit decisions, and continued eligibility for services 
following exit from English learner status.
    Finally, some commenters expressed various concerns. Specifically, 
one commenter opposed the requirement to include criteria and not just 
procedures in proposed Sec.  299.19(c)(3), asserting that the statute 
does not require criteria but only procedures; another expressed 
concern that proposed Sec.  299.19(c)(3) does not allow for locally 
administered assessments as part of an SEA's exit criteria, and one 
questioned the need for proposed Sec.  299.19(c)(3)(iv), which 
references civil rights obligations, given that proposed Sec.  
299.13(c)(2) appears to address the requirement.
    Discussion: We appreciate commenters' general support for proposed 
Sec.  299.19(c)(3). Under

[[Page 86209]]

proposed Sec.  299.19(c)(3), an SEA's standardized entrance and exit 
procedures must include valid, reliable, and objective criteria that 
are applied consistently across the State. We agree that it is 
important for an SEA to consistently apply both entrance and exit 
criteria and that the criteria that an SEA selects, in addition to 
results on an SEA's ELP assessment, must be narrowly defined such that 
they can be consistently applied in LEAs across the State. However, we 
believe that final Sec.  299.19(b)(4) sufficiently ensures these 
parameters around entrance and exit criteria.
    With regard to including local input in an SEA's exit criteria, 
under proposed Sec.  299.19(c)(3), which is moved to Sec.  299.19(b)(4) 
in the final regulations, an SEA may incorporate local input that is 
valid, reliable, objective, and applied and weighted the same way 
across the State. For example, an SEA's exit criteria may include local 
input such as the use of an observational protocol or rubric-graded 
portfolio, as long as such input is applied and weighted consistently 
across the State. Thus, the regulations permit a local team to 
recommend continuing a student in English learner status even if the 
student scores proficient on the State's ELP assessment.
    We also note that a student may continue to receive English 
language support with local or State funds even after exiting from 
English learner status. Furthermore, we will consider reemphasizing 
this in guidance.
    Regarding concern over the requirement that an SEA's standardized 
entrance and exit procedures must also include criteria, as discussed 
earlier, under GEPA and DEOA, the Secretary has general rulemaking 
authority. Therefore, it is not necessary for the Act to specifically 
authorize the Secretary to issue a particular regulatory provision. 
Given the title III, part A requirement to describe statewide entrance 
and exit procedures under section 3113(b)(2) of the ESEA, as amended by 
the ESSA, we believe it is within our regulatory authority to ensure 
that the procedures include criteria that will ensure the purposes of 
title III, part A are met, including to ensure that English learners 
attain ELP and develop high levels of academic achievement in English. 
With respect to the use of locally administered assessments, the 
Department believes that final Sec.  299.19(b)(4) appropriately 
precludes use of locally administered ELP assessments as part of its 
exit criteria, as local assessments, by definition, are not standard 
across the State. However, local assessments may be used to help 
identify the needs of and appropriate instructional supports for 
English learners so that they can attain English proficiency. Finally, 
we agree with the commenter regarding proposed Sec.  299.19(c)(3)(iv) 
on civil rights obligations, and are moving that provision to Sec.  
299.13(c)(2).
    Changes: We have removed proposed Sec.  299.19(c)(3)(iv) and added 
necessary text to Sec.  299.13(c)(2) requiring an SEA to provide an 
assurance that its exit procedures as well as its entrance procedures 
are consistent with civil rights obligations.
Title III, Part A Exit Procedures for English Learners
    Comments: Some commenters supported proposed Sec.  299.19(c)(3), 
which restricts the use of content area assessments as part of an SEA's 
standardized exit criteria, with one commenter explaining that content 
area assessments are neither designed nor intended to measure a 
student's ELP and thus should not be used as a criterion in deciding to 
continue a student in or exit a student from English learner status. 
This same commenter, however, asserted that an SEA can and should use 
results of content area assessments to set academic achievement 
standards (i.e., ``cut scores'') on the SEA's ELP assessment, 
particularly to help mitigate against cut scores that result in 
students prematurely exiting English learner status.
    Commenters who opposed the restriction generally sought greater 
flexibility in using the results of content area assessments to inform 
decisions on both continuing a student in or exiting a student from 
English learner status. For example, some commenters stated that it may 
be appropriate to use the results of content assessments to continue a 
student's English learner status if the ELP assessment is not fully 
aligned with a State's academic content standards or the cut scores on 
the ELP assessment have not been set at appropriate levels and thus 
could result in a student prematurely exiting English learner status 
(and potentially violating a student's civil rights). Among commenters 
who supported using the results of content assessments to exit students 
from English learner status, one commenter asserted that a student who 
scores proficient on the State's reading/language arts assessment, but 
just below a score of proficient on the State's ELP assessment, should 
be permitted to exit English learner status, and that such flexibility 
could help account for error in ELP assessments. Finally, one commenter 
requested clarification as to what academic content assessments means 
under proposed Sec.  299.19(c)(3).
    Discussion: Under proposed Sec.  299.19(c)(3), an SEA's 
standardized entrance and exit procedures must not include performance 
on an academic content assessment. Academic content assessments in this 
context means any academic content assessments, including the statewide 
assessments in reading/language arts, mathematics, or science used for 
accountability purposes, as well as other assessments.
    The Department continues to believe that while performance on 
content area assessments may be affected by a student's level of ELP, 
such assessments are not valid and reliable measures of ELP and, if 
used to continue a student's status as an English learner, may do so 
inappropriately (i.e., when a student is proficient in English) and 
lead to negative academic outcomes for an individual student. We are 
aware that some SEAs and LEAs have entered into resolution agreements 
or consent decrees with Federal agencies that contain provisions 
relating to exit criteria for English learners. We encourage those SEAs 
and LEAs to contact the Department so that we may, together with the 
U.S. Department of Justice, assist those SEAs and LEAs with the 
requirements under both these regulations and the applicable resolution 
agreement or consent decree.
    It would be equally inappropriate use a proficient score on the 
reading/language arts assessment to exit a student whose ELP assessment 
results are close to the cut score. The reading/language arts 
assessment typically does not assess all four domains (reading, 
writing, listening, and speaking); consequently, using results on such 
an assessment as part of exit criteria may result in a student exiting 
who is not able to succeed in a classroom in which listening and 
speaking in English are crucial skills. Finally, we agree that using 
the results on content area assessments to help establish cut scores on 
an ELP assessment may contribute to more meaningful cut scores on the 
English language proficiency assessment, and we note that the final 
regulations do not restrict the use of content area assessment results 
for this purpose.
    Changes: None.
    Comments: Some commenters expressed support for the requirement in 
proposed Sec.  299.13(c)(3) that an SEA's standardized exit criteria 
for English learners must include a score of proficient on the State's 
ELP assessment as one criterion to exit a student from English learner 
status. However, one of

[[Page 86210]]

these commenters recommended prohibiting SEAs from using the results of 
the ELP assessment as its sole criterion for determining English 
learner status. Other commenters opposed Sec.  299.13(c)(3), with some 
expressing concern that English learners who are also students with 
disabilities might never be able to exit English learner status and 
others questioning how a student whose parents opt their children out 
of all State standardized testing would be able to exit English learner 
status without an ELP score.
    Discussion: We believe that, consistent with the January 7, 2015 
Dear Colleague Letter on serving English learners, including those with 
disabilities, which was jointly signed by the U.S. Department of 
Justice and OCR, a score of proficient on the State's ELP assessment is 
critical to ensuring that a student is appropriately exited from 
English learner status (see http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf). Such exit must, at a minimum, be 
based on a valid and reliable measure that demonstrates sufficient 
student performance across the required domains in order to consider an 
English learner to have attained proficiency in English, i.e., a 
State's ELP assessment. While States have flexibility under the final 
regulations to use objective criteria related to English language 
proficiency in addition to a proficient score on the State ELP 
assessment to determine English learner status, we decline to require 
the use of multiple criteria.
    With respect to a student whose parents may have chosen to opt the 
student out of all State standardized testing, a high-quality 
assessment system, including State standardized tests, helps parents, 
teachers, and other stakeholders to understand and address the needs of 
individual and groups of students. A State's ELP assessment, along with 
other indicators of a student's performance and progress at achieving 
ELP, can focus efforts on areas where students most need support to 
help ensure their academic success, attainment of a regular high school 
diploma, and pursuance of postsecondary education or a career of their 
own choosing.
    Changes: None.
McKinney-Vento Education for Homeless Children and Youths (McKinney-
Vento) Program
    Comments: We received one comment supporting the inclusion of the 
McKinney-Vento program in the consolidated State plan. We received 
another comment, submitted with multiple signatories, expressing 
concern that several key elements of the State plan required in the 
McKinney-Vento Homeless Assistance Act, as amended by the ESSA, were 
omitted from the program-specific requirements under Sec.  299.19(c)(5) 
and recommending the addition of certain requirements to the final 
regulations. The commenters expressed concern that without the 
inclusion of these requirements in the consolidated State plan, each 
SEA may not provide adequate attention to them when implementing the 
McKinney-Vento Homeless Assistance Act, as amended by the ESSA. The 
commenters also noted that because the SEA's plan for addressing these 
critical elements would not be included in the consolidated State plan, 
stakeholders and the public would not have a formal opportunity to 
provide comments on them, as required by the consultation requirements 
in Sec.  299.13.
    Discussion: We appreciate the comments supporting the inclusion of 
the McKinney-Vento program in the consolidated State plan. We note that 
under Sec.  299.13(c), all SEAs, whether submitting an individual or 
consolidated State plan, must submit a single set of section 8304(a)(1) 
assurances, applicable to each program for which the plan or 
application is submitted, that provides that each such program will be 
administered in accordance with all applicable statutes, regulations, 
program plans, and applications. These assurances are consistent with 
the purpose of the consolidated State plan requirements under Section 
8302 of the ESEA, as amended by the ESSA, which aims to simplify 
application requirements and which requires the Secretary to require 
only descriptions, information, assurances, and other materials that 
are absolutely necessary for the consideration of the consolidated 
State plan. The consolidated State plan requirements for the McKinney-
Vento program contain those requirements that we have determined are 
absolutely necessary for the consideration of the consolidated State 
plan, and we decline to add any additional requirements beyond those 
that are absolutely necessary. We also note that these areas are 
covered in depth in the updated non-regulatory guidance the Department 
released on July 27, 2016, (available at http://www2.ed.gov/policy/elsec/leg/essa/160240ehcyguidance072716.pdf).
    Changes: None.
Program-Specific Requirements for Title I, Part D
    Comments: A number of commenters expressed concern that there was 
not more specific mention of title I, part D requirements in the NPRM. 
Several of these commenters expressed a desire for more emphasis in the 
regulations on transition services for students moving between 
correctional facilities and locally operated programs, and several 
commenters requested more focus in the final regulations on how States 
plan to assess the effectiveness of their title I, part D programs in 
improving the academic, career, and technical skills of children in the 
program. Some commenters also requested regulatory changes to provide 
clear instructions for monitoring. Finally, one commenter asked that 
the Department define ``at-risk'' in the regulations.
    Discussion: We agree with the commenters that title I, part D 
should be addressed in the consolidated State plan requirements and are 
adding title I, part D requirements in Sec.  299.19(c)(3). Consistent 
with Section 8302 of the ESEA, as amended by the ESSA, we are adding 
only those requirements that we have determined are absolutely 
necessary for the consideration of the consolidated State plan. 
Regarding monitoring, the SEA is expected to meet the requirements 
outlined in title I, part D, and the Department declines to add any 
additional monitoring requirements. Similarly, section 1432(2) of the 
ESEA, as amended by the ESSA, already includes a definition of the term 
``at-risk.''
    Changes: We have revised Sec.  299.19(c)(3) to include title I, 
part D consolidated State plan requirements.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is significant and, 
therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees,

[[Page 86211]]

or loan programs or the rights and obligations of recipients thereof; 
or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is an economically significant 
regulatory action subject to review by OMB under section 3(f) of 
Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account, among other things and to the extent practicable, the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives such as user fees or 
marketable permits, to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We have also determined that this regulatory action will not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.
    We have assessed the costs and benefits of this regulatory action. 
The costs associated with the final regulations are those resulting 
from statutory requirements and those we have determined as necessary 
for administering these programs effectively and efficiently. Elsewhere 
in this section under Paperwork Reduction Act of 1995, we identify and 
explain burdens specifically associated with information collection 
requirements.
    In assessing the costs and benefits--both quantitative and 
qualitative--of these final regulations, we have determined that the 
benefits justify the costs.

Discussion of Costs and Benefits

    The Department believes that the majority of the changes in these 
final regulations will not impose significant costs on States, LEAs, or 
other entities that participate in programs addressed by this 
regulatory action. Other changes will impose costs, but in many cases 
they are one-time or initial costs that will not recur, and the 
Department believes that the benefits resulting from the regulations 
will exceed the costs by a significant margin. We also note that while 
the Department received over 20,000 public comments on the proposed 
regulations, only four commenters addressed the Regulatory Impact 
Analysis, with one commenter supporting the cost estimates in the NPRM 
and three commenters asserting that the estimates did not fully reflect 
the costs of implementation. We believe that this relatively low level 
of concern about administrative burdens and costs confirms our view, as 
expressed in the NPRM, that the regulatory framework in these 
regulations for State accountability systems based on the ESEA, as 
amended by the ESSA, closely parallels current State systems, which 
include long-term goals and measurements of interim progress; multiple 
indicators, including indicators of Academic Achievement, Graduation 
Rates, and other academic measures selected by the State; annual 
differentiation of school performance; the identification of low-
performing schools; and the implementation of improvement plans for 
identified schools.
    In addition, the final regulations, consistent with the 
requirements of the ESEA, as amended by the ESSA, provide considerable 
flexibility to States and LEAs in determining the specific approaches 
to meeting new requirements, including the rigor of long-term goals and 
measurements of interim progress, the timeline for meeting those goals, 
the selection and weighting of indicators of student and school 
progress, the criteria for identification of schools for improvement, 
and the development and implementation of improvement plans. This 
flexibility allows States and LEAs to build on existing measures, 
systems, and interventions rather than creating new ones, and to 
determine the most cost-efficient and least burdensome means of meeting 
proposed regulatory requirements, instead of a standardized set of 
prescriptive requirements. For all of these reasons, this final cost-
benefit analysis generally is consistent with the Department's original 
estimates.
    One commenter asserted that virtually the entire reduced burden in 
the proposed regulations resulted from statutory rather than regulatory 
changes, implying that the cost-benefit analysis improperly attributed 
burden reduction to the regulations. The commenter also asserted that 
in reducing flexibility for States compared to statutory requirements, 
the proposed regulations would likely increase costs for States due to 
the additional administrative burdens of meeting new requirements. In 
response, we note that, consistent with OMB requirements, our cost-
benefit analysis in the final regulations, as in the proposed 
regulations, takes into account the estimated costs of both statutory 
and regulatory changes compared to previous statutory and regulatory 
requirements.
    Accordingly, we identify certain statutory changes to the 
accountability systems and school improvement requirements of the ESEA, 
as amended by the ESSA, which would result in a significant reduction 
in costs and administrative burdens for States and LEAs. First, the 
previous regulations, which are based on the core goal of ensuring 100 
percent proficiency in reading and mathematics for all students and all 
subgroups, potentially result in the identification of the overwhelming 
majority of participating title I schools for improvement, corrective 
action, or restructuring. Such an outcome would produce unsustainable 
demands on State and local capacity to develop, fund, implement, and 
monitor school improvement plans and related school improvement 
supports. It was the prospect of this outcome that drove the 
development of, and rapid voluntary requests for, waivers of certain

[[Page 86212]]

accountability and school improvement requirements under ESEA 
flexibility prior to enactment of the ESSA. The final accountability 
regulations instead will require, consistent with the requirements of 
the ESEA, as amended by the ESSA, more flexible, targeted, largely 
State-determined systems of differentiated accountability and school 
improvement focused on the lowest-performing schools in each State, 
including the bottom five percent of title I schools based on the 
performance of all students, as well as other schools identified for 
consistently underperforming subgroups. Based on the experience of ESEA 
flexibility, the Department estimates that States will identify a total 
of 10,000-15,000 schools for school improvement nationwide--of which 
the Department estimates 4,000 will be identified for comprehensive 
support and improvement--compared with as many as 50,000 under the 
previous regulations in the absence of waivers. While the costs of 
carrying out required school improvement activities under the previous 
regulations varied considerably across schools, LEAs, and States 
depending on a combination of factors, including the stage of 
improvement and locally selected interventions, it is clear that the 
final regulations will dramatically decrease potential school 
improvement burdens for most States and LEAs.
    Second, under the final regulations, LEAs will not be required to 
make available supplemental educational services (SES) to students from 
low-income families who attend schools identified for improvement. This 
means that States will not be required to develop and maintain lists of 
approved SES providers, review provider performance, monitor LEA 
implementation of SES requirements, or set aside substantial amounts of 
title I, part A funding for SES. States and LEAs also will no longer be 
required to report on either student participation or expenditures 
related to public school choice or SES. While States participating in 
ESEA flexibility generally already have benefited from waivers of the 
statutory and regulatory requirements related to public school choice 
and SES, the final regulations will extend this relief to all States 
and LEAs without the additional burden of seeking waivers.
    Third, the final regulations will eliminate requirements for State 
identification of LEAs for improvement and the development and 
implementation of LEA improvement and corrective action plans. As would 
be the case for schools, the current regulations would require such 
plans for virtually all participating title I LEAs; the final 
regulations will not require States to identify any LEAs for 
improvement.
    While most of the elements and requirements of State accountability 
systems required by the final regulations involve minimal or even 
significantly reduced costs compared to the requirements of the 
previous regulations, there are certain proposed changes that could 
entail additional costs, as described below.
Goals and Indicators
    Section 200.13 requires States to establish a uniform procedure for 
setting long-term goals and measurements of interim progress for 
English learners that can be applied consistently and equitably to all 
students and schools for accountability purposes and that consider 
individual student characteristics (e.g., grade level, English language 
proficiency level) in determining the most appropriate timeline and 
goals for attaining English language proficiency for each English 
learner. We estimate that each State will, on average, require 80 hours 
of staff time to develop the required uniform procedure. Assuming a 
cost of $40 per hour for State staff, the final regulations will result 
in a one-time cost, across 50 States, the District of Columbia, and 
Puerto Rico, of $166,400. We believe that the development of a uniform, 
statewide procedure will minimize additional costs and administrative 
burdens at the LEA level, and that any additional modest costs will be 
outweighed by the benefits of the final regulations, which will allow 
differentiation of goals for an English learners based on their 
language and educational backgrounds, thereby recognizing the varied 
needs of the English learner population. Setting the same long-term 
goals and measurements of interim progress for all English learners in 
the State would fail to account for these differences in the English 
learner population and would result in goals that are inappropriate for 
at least some students and schools.
    Under Sec.  200.14(b)(5), States will be required to develop at 
least one indicator of School Quality or Student Success that measures 
such factors as student access to and completion of advanced 
coursework, postsecondary readiness, school climate and safety, student 
engagement, educator engagement, or any other measure the State 
chooses. Section 200.14(c) specifies that measures within School 
Quality or Student Success indicators must, among other requirements, 
be valid, reliable, and comparable across all LEAs in the State and 
support meaningful differentiation of performance among schools. We 
recognize that the development and implementation of new School Quality 
or Student Success indicators, which may include the development of 
instruments to collect and report data on one or more such measures, 
could impose significant additional costs on a State that elects to 
develop an entirely new measure. However, the Department also believes, 
based in part on its experience in reviewing waiver requests under ESEA 
flexibility, that all States currently collect data on one or more 
measures that may be suitable as an indicator of School Quality or 
Student Success consistent with the requirements of Sec.  200.14(b)(5). 
Consequently, we believe that all, or nearly all, States will choose to 
adapt a current measure to the purposes of Sec.  200.14(b)(5), rather 
than developing an entirely new measure, and thus that the final 
regulations will not impose significant new costs or administrative 
burdens on States and LEAs.
Participation Rate
    Section 200.15(b)(2)(iv) provides flexibility for a State to 
develop and submit for approval--as part of either a consolidated State 
plan or a title I, part A State plan--a State-determined action or set 
of actions for factoring the 95 percent participation rate requirement 
into its system of annual meaningful differentiation of schools that is 
sufficiently rigorous to improve a school's assessment participation 
rate so that it meets the 95 percent participation rate requirement. We 
note that a State may avoid the administrative burden and cost of 
developing its own State-determined action, or set of actions, by 
adopting one or more of the alternative actions provided in Sec.  
200.15(b)(2)(i)-(iii). Nevertheless, we estimate that 26 States will 
take advantage of this flexibility and incur the one-time costs of 
developing or adopting and submitting for approval to the Department a 
State-determined action or set of actions for schools that miss the 95 
percent participation rate. The Department further estimates that these 
26 States would need, on average, 32 hours to develop or adopt and 
submit for peer review and approval such a State-determined action. At 
$40 per hour, the average cost per State would be $1,280, resulting in 
total costs of $33,280 for the estimated 26 States. We expect that 
States generally would use Federal education funds they reserve for 
State administration under title I, part A to cover these one-time 
costs.

[[Page 86213]]

    In addition, Sec.  200.15(c)(2) requires an LEA with a significant 
number of schools that fail to assess at least 95 percent of all 
students or 95 percent of students in any subgroup to develop and 
implement an improvement plan that includes support for school-level 
plans to improve participation rates that must be developed under Sec.  
200.15(c)(1). Section 200.15(c)(2) further requires States to review 
and approve these LEA plans.
    These improvement plan requirements are similar to previous 
regulations that required States to: Annually review the progress of 
each LEA in making AYP; identify for improvement any LEA that fails to 
make AYP for two consecutive years, including any LEA that fails to 
make AYP as a result of not assessing 95 percent of all students or 
each subgroup of students; and provide technical assistance and other 
support related to the development and implementation of LEA 
improvement plans. Current regulations also require States to take 
certain corrective actions in LEAs that miss AYP for four or more 
consecutive years, including LEAs that miss AYP due to not assessing 95 
percent of all students or each subgroup of students. As noted 
previously, the final regulations no longer require annual State review 
of LEA progress; State identification of LEAs for improvement; or the 
development, preparation, or implementation of LEA improvement or 
corrective action plans. This significant reduction in State burden 
more than offsets the burden in the final regulations related to both 
the potential one-time cost of developing a State-determined action for 
schools that miss the 95 percent participation rate and reviewing and 
approving LEA plans to address low assessment participation rates in 
their schools. In addition, State discretion to define the threshold 
for ``a significant number of schools'' that would trigger the 
requirement for LEA plans related to missing the 95 percent 
participation rate will provide States a measure of control over the 
burden of complying with the final regulations. Consequently, the 
Department believes that the final regulations related to the 95 
percent participation rate will not increase costs or administrative 
burdens significantly for States, as compared to the current 
regulations. Moreover, we believe that these requirements will have the 
significant benefit of helping to ensure that the plans include 
effective interventions that will improve participation in assessments, 
facilitate transparent information for families and educators on 
student progress, and assist schools in supporting high-quality 
instruction and meeting the demonstrated educational needs of all 
students.
School Improvement Process
    The school improvement requirements in the final regulations 
generally are similar to those required under the current regulations. 
The previous regulations required identification of schools for 
multiple improvement categories, State and LEA notification of 
identified schools, the development and implementation of improvement 
plans with stakeholder involvement, State support for implementation of 
improvement plans, LEA provision of public school choice and SES 
options (the latter of which also imposes significant administrative 
burdens on States), and more rigorous actions for schools that do not 
improve over time. In addition, the previous regulations included a 
prescriptive timeline under which schools that do not improve must 
advance to the next stage of improvement, typically only after a year 
or two of implementation at the previous stage (e.g., a school is given 
only one year for corrective action to prove successful before being 
identified for restructuring). The previous regulations also generally 
did not allow for a planning year prior to implementation of the 
required improvement plans (with the exception of the penultimate 
restructuring phase). The final regulations, consistent with the 
statute, provide more flexibility around the timeline for identifying 
schools (e.g., once every three years for comprehensive support and 
improvement schools), up to a full year to develop comprehensive 
support and improvement and targeted support and improvement plans, and 
more time for full and effective implementation of improvement plans 
based on State- and LEA-determined timelines for meeting improvement 
benchmarks. The final regulations also eliminate the public school 
choice and SES requirements, which impose substantial administrative 
costs and burdens on LEAs that are not directly related to turning 
around low-performing schools. We believe that the final regulations 
will result in a significant reduction in the administrative burdens 
and costs imposed by key school improvement requirements by the 
previous regulations.
    The final regulations also clarify certain elements of the school 
improvement process required by the ESEA, as amended by the ESSA, 
including the needs assessment for schools identified for comprehensive 
support and improvement, the use of evidence-based interventions in 
schools identified for both comprehensive support and improvement and 
targeted support and improvement, and the review of resource inequities 
required for schools identified for comprehensive support and 
improvement as well as for schools with low-performing subgroups 
identified for targeted support and improvement under Sec.  
200.19(b)(2). Section 200.21 requires an LEA with such a school to 
carry out, in partnership with stakeholders, a comprehensive needs 
assessment that takes into account, at a minimum, the school's 
performance on all indicators used by the State's accountability system 
and the reason(s) the school was identified. The final regulations also 
require the LEA to develop a comprehensive support and improvement plan 
that is based on the needs assessment and that includes one or more 
evidence-based interventions. These requirements are similar to the 
requirements in the previous regulations, under which LEAs with schools 
identified for improvement must develop improvement plans that include 
consultation with stakeholders. Thus we believe that the final 
regulations related to conducting a needs assessment and the use of 
evidence-based interventions will not increase costs or administrative 
burdens significantly for LEAs, as compared to the previous statutory 
and regulatory requirements. Moreover, we believe that these 
requirements will have the significant benefit of helping to ensure 
that the required improvement plans include effective interventions 
that meet the demonstrated educational needs of students in identified 
schools, and ultimately improve outcomes for those students.
    Section 200.21 also requires LEAs with schools identified for 
comprehensive support and improvement, as well as schools with low-
performing subgroups identified for targeted support and improvement 
that also must receive additional targeted support under Sec.  
200.19(b)(2), to identify and address resource inequities, including 
any disproportionate assignment of ineffective, out-of-field, or 
inexperienced teachers and possible inequities related to the per-pupil 
expenditures of Federal, State, and local funds. These requirements 
involve an additional use of data and methods that LEAs would be 
required to develop and apply to meet other statutory and regulatory 
requirements in the final regulations, including requirements related 
to ensuring that low-income and

[[Page 86214]]

minority students are not taught at disproportionate rates by 
ineffective, out-of-field, or inexperienced teachers, the inclusion of 
per-pupil expenditure data on State and LEA report cards, and the use 
of per-pupil expenditure data to meet the title I supplement not 
supplant requirement. In addition, the final regulations do not specify 
how an LEA must address any resource inequities identified through its 
review. We believe it is critically important to ensure equitable 
access to effective teachers, and that the fair and equitable 
allocation of other educational resources is essential to ensuring that 
all students, particularly the low-achieving, disadvantaged, and 
minority students who are the focus of ESEA programs, have equitable 
access to the full range of courses, instructional materials, 
educational technology, and programs that help ensure positive 
educational outcomes.\31\ Consequently, we believe that the benefits of 
the required review of resource inequities outweigh the minimal 
additional costs that may be imposed by the final regulations.
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    \31\ See, for example, U.S.