Key Policy Letters Signed by the Education Secretary or Deputy Secretary
April 27, 2004
Archived Information

April 27, 2004

Honorable Edward M. Kennedy
United States Senate
Washington, DC 20510

Dear Senator Kennedy:

I am writing in response to your letter dated March 24, 2004, requesting that States be allowed to recalculate adequate yearly progress (AYP) decisions based on data from the 2002-2003 school year using the new flexibility offered by the Department of Education (Department) for students with significant cognitive disabilities and limited English proficient (LEP) students. Your request rests on an unfounded claim that the Department did not issue regulations in a "timely manner." Indeed, as I will detail later, the Department was quite diligent in its efforts to develop regulations that are in the best interests of students yet fair to schools and districts.

NCLB Implementation Timeline

The Department issued Title I regulations promptly after addressing the concerns of Congress and ensuring that the public had ample opportunity to provide input, as required by the law. In fact, the Department successfully negotiated regulations for standards and assessments only six months following the passage of No Child Left Behind (NCLB). The Department also finalized regulations addressing accountability and school improvement identifications five months later. In summary, the two most overarching regulations that govern the assessment and accountability provisions were finalized within a year of NCLB's being signed into law.

Under my watch, the Department has undertaken aggressive efforts to provide comprehensive regulatory and technical guidance on most of the complex issues in the law. That takes thoughtful deliberation and careful promulgation of regulations and guidance. The opposite tack - to promulgate rules and regulations without input from practitioners and key policymakers - was not an acceptable option to me.

Let me briefly outline the implementation timeline: on June 10, 2003 - 18 months after the law was enacted - all 50 states, the District of Columbia and Puerto Rico, had approved accountability plans in place. Then, early in the 2003-04 school year, the first full year the accountability plans were being implemented, I directed the Department to examine those areas of the law's implementation that might need to be reexamined from a practical, in-the-field perspective. In December 2003, I announced the final regulation on the assessment of, and accountability for, students with the most significant cognitive disabilities, which was the culmination of a process that had begun in the 2002-03 school year. Then, in February 2004, I announced the new flexibility for the assessment of, and accountability for, LEP students. To act without firsthand knowledge of how the law was being implemented would have resulted in circumstances that may have been detrimental to children's educational opportunities.

Students with Significant Cognitive Disabilities

In order to provide as much flexibility to States as soon as possible, I exercised my transition authority to provide flexibility well in advance of finalizing the regulations. As you know, the flexibility to include students' scores based on alternate achievement standards was proposed in August 2002 as part of the Title I notice of proposed rulemaking (NPRM) on accountability and school improvement. Based on the numerous comments we received on the issue and your own questions, we issued a separate NPRM to address this important issue and ensure that comments were based on a full understanding of the intent and impact of the proposal.

Even though this proposal was not finalized in December 2002 with the rest of the Title I regulations, I gave States the flexibility to include (in AYP decisions) the proficient results of alternate assessments for students with disabilities based on alternate achievement standards. Specifically, information about the use of alternate achievement standards was included in every State decision letter and/or accountability plan, including those for Massachusetts and California. I have included part of the text:

  While this [special education] regulation is being finalized and for this transition year [2002-03] only, [your State] may use alternate achievement standards for students with the most significant cognitive disabilities who take an alternate assessment to calculate AYP for schools… Moreover, the percentage of students held to alternate achievement standards at the school district and the State levels may not exceed 1.0 percent of all students in the grades assessed.

As you can see, all States had access to the flexibility the Department was contemplating while finalizing the regulation on this issue. Further, during the summer of 2003, I released additional transitional flexibility that provided guidance on the use of instructional-level assessments, which only applied to assessments administered during the 2002-03 school year ( The bottom line is that States have had access to significant flexibility related to students with significant cognitive disabilities since the beginning of the implementation of their accountability plans. Consequently, it is neither necessary nor beneficial to apply retroactively this policy to the 2002-2003 school year.

Limited English Proficient Students

With regard to the timing of flexibility provided for LEP students, I believe it is important to note that prior to finalizing the Title I regulations in December 2002, we discussed this issue with your staff, who strongly communicated that they did not concur with the policy of permitting formerly LEP students to be counted in the LEP subgroup. However, my staff continued to examine the issue and talk to States and school districts and determined that the assessment of, and accountability for, LEP students remained a significant issue that needed to be addressed. I am glad that you now agree that States need some flexibility in how they include limited English proficient students in State assessment and accountability systems.

In a February 2004 letter addressing assessment and accountability provisions as they apply to LEP students, I provided flexibility to all States for assessments given this school year and for the AYP determinations based on those assessments. As was true with flexibility provided for children with disabilities, States now have access to flexibility prior to the Department's issuing final regulations (

We have spoken with a number of States about the LEP flexibility, in particular about the data management and infrastructure requirements to implement the flexibility. Most States are in the process of improving their data management systems and at this time many states may find it difficult to implement this flexibility for the current year, much less for previous years.


There are a number of other substantial legal and policy reasons not to apply the new policies related to students with the most significant cognitive disabilities and LEP students in a retroactive fashion. According to the Department's Office of General Counsel, it is very rare to apply federal policies retroactively, as you have requested. The Supreme Court ruled in Bowen v. Georgetown University Hospital (1988) that a retroactive regulation was invalid because there was an absence of statutory authority or legislative intent to make it retroactive. In announcing its decision, the Court noted, "Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Federal statutes and regulations are only applied prospectively unless there is clear Congressional intent and language to apply such policies retroactively.

As you know, the NCLB statute and accompanying conference report contain no such intent or language. They are silent on this point. For example, Section 1901 says, "The Secretary may issue such regulations as are necessary to reasonably ensure that there is compliance with this title [Title I]." Thus Congress gave no indication to the Department that its intention was to make the regulations retroactive.

Finally, it is important to note, the first time schools were required to make AYP under the new NCLB definition was the 2002-2003 school year (based on assessments given that year). Therefore, because it takes two consecutive years of not making AYP to be identified for improvement there is not a single school in the country identified for improvement solely on the basis of a single subgroup's not making AYP, including students with disabilities or LEP students. Schools have already been able to apply flexibility granted for disabled students both last school year and this school year. The LEP flexibility will be in effect for the current school year. Therefore, schools that did not meet AYP last year because of how limited English proficient students were tested or included in the AYP system, and then make AYP this year under the new rules, will not be identified for improvement. Thus, allowing for the retroactive application of the policies related to the assessment of, and accountability for, students with the most significant cognitive disabilities and LEP students would result in no practical difference than by not allowing it, but would result in great confusion in the field about what rules applied when and how.

The introduction of Departmental flexibility based upon my authority as Secretary has to be made thoughtfully and carefully. In summary I believe it is unnecessary to make the flexibility retroactive and would be inconsistent with the facts of implementation, practical reality on the ground, Congressional intent, legal precedent and good policy.

I appreciate your efforts to ensure that State accountability systems produce decisions that are fair, valid, and reliable. I look forward to continuing to work with you on this historic educational reform.



Rod Paige

cc: Cosigners of March 24, 2004 letter

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Last Modified: 05/03/2004