December 31, 2003
Honorable David Stewart
State Superintendent of Schools
West Virginia Department of Education
Building 6, 1900 Kanawha Blvd. E
Charleston, West Virginia 25305-0330
Dear Superintendent Stewart:
I am writing to follow up on your letter of November 4th, in which you submitted several amendments to the West Virginia accountability plan.
West Virginia may use its proposed method for making adequate yearly progress (AYP) decisions in schools without tested grades. Please update your accountability plan with this amendment and submit it to your state contact (Grace Ross) so that the most up-to-date plan is available and on the Department's website.
West Virginia also requested three additional amendments that are not acceptable. First, West Virginia proposes to identify schools and districts for improvement only if the same subgroup did not make AYP in the same subject or indicator for two consecutive years. This identification procedure is not consistent with the statute or regulations. As you know, there is flexibility to permit States to determine schools in need of improvement on the basis of not making AYP in the same subject for two consecutive years. This flexibility stems from other provisions in the statute that treat reading and mathematics independently-e.g., separate starting points and annual measurable objectives. These provisions recognize that student achievement in reading and mathematics in a State may be starting at very different points and thus the State would need to establish different trajectories to attain 100 percent proficiency. Concomitantly, it made sense to permit a State to identify schools in need of improvement based on not making AYP for two years in each subject. Subgroups, on the other hand, are not treated differently in the statute and thus the statute does not support similar flexibility to identify schools in need of improvement on the basis of "same subgroup" performance for two consecutive years. Moreover, your proposal is inconsistent with the statute's accountability provisions, which require that each subgroup meet the State's annual objectives in each subject each year. The intent of school identification is not to lay blame on a particular group of students, as the 'same subgroup/same subject' proposal would do, but to identify the instructional and academic elements that need to be improved. A school that is identified for improvement should look to specific instructional remedies in the subject, other indicator, or participation rate.
Second, West Virginia proposes to use results from "out-of-level" testing in AYP results, where a student may be considered proficient even if they are assessed one or more grade levels below their enrolled grade. The Department has issued a final regulation that permits a State to use alternate achievement standards to evaluate the performance of students with the most significant cognitive disabilities, and to give equal weight to proficient achievement based on the alternate
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standards in calculating school, district, and State AYP, provided that the number of proficient scores based on the alternate achievement standards does not exceed 1.0 percent of all students in the grades tested at the State or LEA level. Any use of out-of-level assessments for AYP purposes would be subject to this regulation. The final rule does not alter the IEP team's role in making individual decisions about how to assess a child. Instead, it restricts, solely for purposes of calculating AYP, the number of scores that can be counted as proficient based on alternate achievement standards. Achievement standards associated with out-of-level assessments may meet the requirements of this regulation only if they are aligned with the State's academic content standards, promote access to the general curriculum, and reflect professional judgment of the highest achievement standards possible. The results from out-of-level assessments must be included within the 1.0 percent cap for the purposes of calculating AYP, because the achievement standards associated with the content measured by out-of-level assessments are clearly different from the achievement standards in the target grade. If you wish to discuss the implications of this provision for your state accountability and assessment system in greater detail, please contact me at your earliest convenience. Information about this regulation is at the following website: http://www.ed.gov/news/pressreleases/2003/12/12092003.html
Third, West Virginia proposes to develop state criteria that would allow for limited exemptions of students from the statewide assessment when "an unexpected medical or psychological condition prohibits participation." The statute clearly establishes an expectation that all students will participate in the assessment. Schools and districts can make AYP if at least 95% of the students participate in the assessment, but the expectation is that all students will be included. West Virginia has set its group size for measuring participation at 50 students; such an arrangement ensures that schools may meet the 95% participation goal even if a few students are unable to take the assessment for medical or other reasons. West Virginia may not establish preemptive criteria for such exclusions, but may consider such matters on a case-by-case basis through its appeals process. We will continue to work with West Virginia to implement these accountability provisions and ensure that all students reach proficiency.
Ronald J. Tomalis
Acting Assistant Secretary
Office of Elementary and Secondary Education