District-affiliated entities becoming SES providers
May 10, 2006
Dear Chief State School Officer:
The purpose of this letter is to provide clarification on an issue related to the provision of supplemental educational services (SES) under Title I of the Elementary and Secondary Education Act of 1965, as reauthorized by the No Child Left Behind Act of 2001.
As you know, each State educational agency (SEA) is responsible for providing annual notice to potential providers of SES of the opportunity to become a provider, and must approve SES providers based on objective criteria related to a provider's demonstrated record of effectiveness in increasing students' academic proficiency and a provider's ability to carry out its responsibilities under section 1116(e)(5) of the statute.
Federal regulations prohibit either a local educational agency (LEA) or a school that has been identified as in need of improvement from serving as an SES provider (34 CFR 200.47(b)(1)(iv)). However, the Department believes that there may be some entities that are affiliated with an LEA, yet sufficiently separate and distinct from the LEA to be eligible to apply to become an SES provider even if the LEA has been identified for improvement. These entities may include 21st Century Community Learning Centers, community education programs, parent information and resource centers, and other entities loosely affiliated with an LEA.
Accordingly, an SEA may approve as an SES provider an entity that is affiliated with an LEA in improvement or corrective action, provided that the SEA determines that the entity is separate and distinct from the LEA in which it is operating. In making that determination, an SEA should consider the following criteria:
- The existence of State law that establishes the entity as separate and legally distinct from the school district.
- The entity has decision-making authority independent from the Superintendent. (It may, however, still be held accountable to the school board.)
- The entity has a separate stream of funding and does not rely on the district for its financial stability.
- The entity has its own hiring capabilities and does not need to abide by the district's hiring obligations and requirements.
- The entity has its own operating structure—e.g., a means of communicating with the public separate from the school district.
- The entity has a separate and independent advisory committee.
- The entity has status as a 501(c)(3) non-profit organization.
An entity may not necessarily meet all of these criteria in order to be considered separate and distinct from its LEA, but an SEA should use these criteria to determine whether the entity is sufficiently independent from the LEA. A stronger case may be made for an entity that meets multiple criteria. Whatever the case, an SEA should document the justification it uses to award approval to an entity that is affiliated with an LEA identified for improvement. In order to determine an entity's affiliation with an LEA, an SEA may consider adding a question to its provider Request For Proposal that would help the SEA accurately determine whether a prospective provider is affiliated with an LEA and the nature of that affiliation.
Additionally, these entities would need to meet all of the standard criteria that an SEA mandates of providers in the State, including providing high-quality instruction and demonstrating a record of effectiveness. Moreover, as a condition of approval, such an entity would need to function as any other supplemental educational services provider in the district. For example, this means that the entity, despite its LEA affiliation, could not have access to information unavailable to other private providers, such as student addresses for marketing purposes.
We hope that this clarification is useful to you. If you have additional questions, please contact our offices at either 202-401-0113 (the Office of Elementary and Secondary Education) or 202-205-4500 (the Office of Innovation and Improvement). We thank you for the work that you are doing to implement fully the SES provisions of the law.
Henry L. Johnson
Elementary and Secondary Education
Christopher J. Doherty
Acting Assistant Deputy Secretary
Innovation and Improvement