May 20, 2004
Honorable Michael E. Ward
North Carolina Department of Public Instruction
6314 Mail Service Center
Raleigh, North Carolina 27699-6314
Dear Superintendent Ward:
I am writing in response to North Carolina's request to amend its State accountability plan under Title I of the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB). Following our discussions with your staff, those changes that are aligned with NCLB are now included in an amended State accountability plan that North Carolina submitted to the Department on May 12, 2004. A list of the changes is attached to this letter. I am pleased to fully approve North Carolina's amended plan, which we will post on the Department's website.Unfortunately, I am not able to approve your request to apply state changes to previous years' data and adequate yearly progress (AYP) decisions. There are a number of substantial legal and policy reasons not to apply changed state policies in a retroactive fashion. In a recent letter to Senator Kennedy, the Department outlined the reasons why federal statutes and regulations are only applied prospectively (www.ed.gov/policy/elsec/guid/secletter/040427.html). A similar conclusion must be drawn for those issues about which States made the decisions. It would be inconsistent with Congressional intent, legal precedent, and the facts of implementation to allow the retroactive application of policies and decisions, even those made by a State. NCLB accountability requires that schools are only identified for improvement after not making AYP for two consecutive years. Schools that did not meet AYP last year because of state decisions about AYP, and then make AYP this year under new state rules, will not be identified for improvement. Thus, allowing for the retroactive application of policies and decisions made by States would result in no practical difference, and would also result in great confusion in the field about what rules applied when and how. To do otherwise would render state accountability systems ineffective and indefinable; consistency would be lost; and schools, teachers, parents and students would face a moving target that provided very little, if any, standard by which to measure progress and success.
If, over time, North Carolina makes changes to the accountability plan that has been approved, North Carolina must submit information about those changes to the Department for review and approval, as required by section 1111(f)(2) of Title I. Approval of North Carolina's accountability plan is not also an approval of North Carolina's standards and assessment system. As North Carolina makes changes in its standards and assessments to meet requirements under NCLB, North Carolina must submit information about those changes to the Department for peer review through the standards and assessment process.
Please also be aware that approval of North Carolina's accountability plan for Title I, including the amendments approved above, does not indicate that the plan complies with Federal civil rights requirements, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and requirements under the Individuals with Disabilities Education Act.
I hope that you have found the accountability plan amendment process effective for implementing a state accountability system that best serves the needs of North Carolina's students and schools and that will lead to improving the academic achievement of all students. As evidenced by the diversity among state accountability plans and state consolidated applications, States have great flexibility in the design of their systems and implementation of particular NCLB provisions. If, as you implement your accountability plan, you find additional elements of your plan that you believe should be refined or amended for next school year to best serve the needs of your students and schools, I encourage you to explore all the areas of flexibility available to your State.
In addition to the flexibility available to States in the design and implementation of their accountability plans, I also encourage you and your districts to utilize the additional flexibility available for the administration and operation of NCLB programs. NCLB continued the flexibility available to States and districts under the 1994 reauthorization of the ESEA, including the ability to consolidate state and local administrative funds (sections 9201 and 9203), to operate schoolwide programs (section 1114), and to participate in the Education Flexibility Partnership Program ("Ed-Flex"). Additionally, NCLB created several new flexibility options for States and districts for the operation of federal programs. These new flexibility provisions include the State Flexibility Authority (sections 6141 through 6144), the Local Flexibility Demonstration program (sections 6151 through 6156), Transferability (sections 6121 through 6123), and the Rural Education Achievement program (sections 6201 through 6234). These flexibilities truly offer States and districts the ability to target federal resources to their unique and individual needs.
I am confident that North Carolina will continue to advance its efforts to hold schools and school districts accountable for the achievement of all students. I wish you well in your school improvement efforts. If I can be of any additional assistance to North Carolina in its efforts to implement other aspects of NCLB, please do not hesitate to call.
Office of Elementary and Secondary Education
cc: Governor Mike Easley
Amendments to the North Carolina Accountability Plan
These statements are summaries of the amendments. For complete details, please refer to the North Carolina Accountability plan on the Department's website:
School Improvement/Rewards and Sanctions (Element 1.6)
Revision: North Carolina has created a new level of honor for schools that make both AYP and achieve the highest ranking in the NC/ABC program.
Participation Rate (Element 2.1)
Request: North Carolina will adopt the new flexibility regarding multi-year averaging of participation rate.
Confidence Interval (Element 3.2)
Revision: North Carolina will apply a 95% confidence interval to AYP decisions.
AYP for targeted assistance schools (Element 3.2)
Revision: North Carolina indicates that some LEAs may chose to calculate AYP based on only those students who are eligible for or served through Title I. They will conduct this analysis in alignment with Department guidance on this issue.
Amendment with respect to same subject identification (Element 4.1)
Revision: North Carolina will identify schools for improvement on the basis of not making AYP for two consecutive years in the same subject.
Participation Rate (element 5.3)
Request: North Carolina will adopt the new flexibility regarding students who have medical emergencies during the testing window and its affect on a school's participation rate.
Alternate assessments (Element 5.3)
Revision: North Carolina will be using the final regulation in the Federal Register issued December 9, 2003, concerning the 1.0% cap. Specifically, North Carolina will ensure that the "number of proficient and advanced scores based on the alternate achievement standards" does not exceed 1.0% of all students in the grades assessed at the State and LEA levels.
Assessment and Accountability for LEP students (Element 5.4)
Revision: North Carolina will include the flexibility that the Secretary's letter of February 20, 2004 provides relative to limited English proficient students for assessment and accountability purposes.