Key Policy Letters Signed by the Education Secretary or Deputy Secretary
May 15, 2006
Archived Information

May 15, 2006

Dear Chief State School Officer:

I am writing to request your assistance with implementing more effectively two key provisions of the No Child Left Behind Act of 2001 (NCLB) – those authorizing public school choice and supplemental educational services (SES). These two provisions recognize that parent options and information are essential for ensuring that students are academically successful and that all students achieve proficiency by 2013-2014.

In recent months, I have met with many Chief State School Officers and their representatives and worked with States to make the implementation of NCLB as responsive as possible to the needs of schools, school administrators, teachers, students, and parents, while ensuring that we are on track to proficiency for every student.

Over the past few years, the U.S. Department of Education (the Department) has provided States and local educational agencies (LEAs) with technical assistance and resources needed to implement public school choice and SES successfully. We have issued non-regulatory guidance on public school choice and on SES. This guidance is available at the following addresses: ( and (

We also have issued documents that identify exemplary practices that should be helpful in correcting problems in each of these areas. For example, we issued a series of "innovation guides" ( and an online toolkit, and we have also provided extensive technical assistance at national conferences and through ongoing discussions with States.

Last year, I began exploring several ways to improve LEAs' implementation through two pilot programs. I worked closely with the States and LEAs involved to provide them with additional flexibility under section 9401 of the Elementary and Secondary Education Act and, in return, expected quality results. Under the first pilot program, the Boston Public Schools and the Chicago Public Schools were given the opportunity to apply to become SES providers despite being LEAs in need of improvement. I am currently reviewing the results from the Boston and Chicago pilots and will be making decisions about their continuation in the near future. Under the second pilot program, four LEAs in Virginia were allowed to offer SES to students attending schools in the first year of improvement before offering public school choice.

In keeping with this spirit of flexibility, I will be extending into the 2006-07 school year the pilot program that allows LEAs to reverse the order in which public school choice and SES are offered to students, and I am inviting all eligible States to apply on behalf of qualifying LEAs. The positive results we have seen in Virginia are clear evidence that offering this flexibility, in return for States' and LEAs' meeting certain conditions of quality SES implementation, is an effective policy approach to helping students and providing families with quality choices.

Additional information about State and LEA eligibility, the process by which States can apply, and the conditions that pilot States and LEAs will have to meet are detailed in the enclosure of this letter.

Public school choice and SES are critical to students' academic success, and yet for the past several years, participation has been unacceptably low in many LEAs around the country. Through our monitoring and evaluation work, we have learned that, in 2003-04, only 17 percent of eligible students participated in SES, and only one percent participated in public school choice. We also know that the majority of LEAs notified parents about the public school choice option after the school year began, in some cases because States did not provide LEAs with timely AYP data, and that several States did not ensure that LEAs included all required information in their notices to parents.

Further, the Department's Office of Inspector General conducted a series of six audits over the past few years that revealed significant findings on State and LEA implementation of these provisions. The audits found that each of the six States failed to monitor adequately their LEAs for compliance. As a result, nearly all of the parent notification letters reviewed failed to include the required elements of the law; multiple LEAs did not offer eligible parents the options to transfer their children or participate in SES at all; and several LEAs allowed students to transfer to ineligible choice schools, issued late notification letters, failed to budget sufficient funding for the services, or did not notify parents of all options available to them.

We know that some corrective actions are underway, but we must work together to expedite the implementation of further improvements. We expect LEAs to notify all eligible parents of their public school choice and SES options in a way that is timely (i.e., before the start of the school year), clear, unbiased, and contains all required information. We also expect LEAs to set aside an amount equal to 20 percent of their Title I, Part A, allocation for choice-related transportation and SES and to spend that amount, unless demand for services (allowing for a sufficient enrollment period) does not require full funding.

Given the technical assistance and support the Department has already provided to States and LEAs, and the poor and uneven quality of the implementation efforts we are seeing in LEAs around the country, we are prepared to take significant enforcement action. We will be using data collected through Title I monitoring, Inspector General reports, Consolidated State Performance Reports, and other sources to take enforcement action. These actions may include the following:

  • Placing conditions on Title I grants to an SEA that will require corrective action and extra reporting until the LEA meets its responsibilities with regard to public school choice and SES, and if the conditions are not met, further enforcement actions will be taken;

  • Withholding all or a proportionate amount of program and administrative funds from an SEA under Section 455 of the General Education Provisions Act that is related to the seriousness of the violation; and

  • Entering into a compliance agreement with an SEA or with an SEA and LEA to ensure adherence to the law.

In most cases, when LEAs are out of compliance with public school choice and SES, I will place conditions on State grants and consider withholding Federal funds or entering into a compliance agreement. My decisions about State and LEA implementation of these provisions will be posted on the Department's Web site.

We ask States to begin working with their LEAs now to ensure that in the 2006-07 school year, we will see significant improvements in the implementation of these provisions. LEAs may know at this time that it is certain or likely that some of their schools will need to offer these services next year and, by making preparations now to provide adequate notification to parents and give them a reasonable amount of time to make decisions about their options, LEAs can help ensure a more successful year in 2006-07.

We urge States to consider ways to help their LEAs become fully compliant in the next school year by, for example, closely monitoring LEA actions, including their spending on public school choice and SES and their parent notifications, and providing LEAs with significant resources and technical assistance. Additionally, we ask States to ensure that their own information systems include data on student participation and performance and LEA spending for public school choice and SES. We know the importance of accurate data on these provisions and ask that States consider ways to provide responses to the Consolidated State Performance Reports and EDFacts that are complete and accurate. The Department will help States with these efforts by continuing to offer technical assistance and resources. Finally, we ask States to continue their efforts in implementing high-quality evaluations of SES providers so that we can be sure that SES programs will help students reach academic proficiency and help schools exit improvement status.

Despite the challenges and problems I have discussed above, there are LEAs that are implementing public school choice and SES well, and in the coming months, I will be visiting and highlighting those that have taken to heart the message that educational options for parents are an essential component to improved educational outcomes for all students. These LEAs can stand as examples of how NCLB is meant to work. To reach universal academic proficiency, families must have the opportunity to enroll their children in educational environments that are of high quality and meet the academic needs of their children.

Thank you for the work that you do each day to implement NCLB and serve our nation's children.

  Margaret Spellings


SES Pilot Program:
Offering SES to Students in Schools in Year One of Improvement

Eligibility and Process

  • What criteria must a State meet to be eligible for this flexibility? To be eligible for this pilot program, a State must meet three criteria that demonstrate its progress meeting the accountability, SES, and assessment requirements of NCLB:

    1. Timely notification of adequate yearly progress (AYP). A State must have made AYP determinations on which Title I schools in improvement were expected to act before the start of the school year for years 2004-05 and 2005-06. We will not be considering the status of AYP notification for the 2006-07 school year for the purposes of this pilot.
    2. State SES evaluations in progress. A State currently must have underway its evaluation of SES providers. A State must have implemented an evaluation of the extent to which its SES providers are contributing to student achievement, and must have at least begun the process of collecting data for the evaluation.
    3. State assessments that have "Full Approval," "Full Approval with Recommendations," or "Approval Expected." A State must have its assessment systems reviewed by the U.S. Department of Education (the Department) and rated in one of these top three categories.
  • Which LEAs are eligible for this flexibility? A State that meets the three criteria above may apply for this flexibility on behalf of seven qualifying LEAs in its State, of which two should be rural LEAs. Participating LEAs must have issued timely public choice and SES notification letters to parents over the past two years and should be located throughout the State. A State may propose to include an LEA in need of improvement. However, an LEA in need of improvement that participates in this pilot is not eligible to apply to become an SES provider itself.

  • What should a State include in its proposal? A State should submit an application seeking flexibility to offer SES to eligible students attending a school that is in its first year of improvement. A State should clearly and concisely provide a justification for this flexibility and how the State meets the three core criteria listed above. A State should also identify and justify its proposed participating LEAs, and describe the process by which it will select schools within those LEAs to participate. A State submitting a proposal is asked to send it electronically to (

  • When should a State submit its proposal? A State that wishes to participate in this flexibility for the 2006-07 year should submit its proposal to the Department by June 19, 2006. Note that only States, and not LEAs, may apply directly to the Department for this flexibility.

  • What is the approval process? Upon receipt of a flexibility proposal, the Department will review it to determine the extent to which a State and its proposed LEAs meet the core criteria for participation. If the proposal is satisfactory, the Department will issue a letter to the State outlining the terms of the flexibility agreement.

  • How long is this flexibility in effect? The agreement will be in effect during the 2006-07 school year only. At the end of that year, the Department will evaluate whether to continue the agreement into future school years.

Terms of Participation in the Pilot

A State and its LEAs, once approved to participate in the pilot, must meet the following conditions:

  • The State must ensure that more students participate in SES and public school choice by demonstrating that the combined participation in public school choice and SES in the pilot LEAs increases substantially in 2006-07 over the 2005-06 levels.

  • The State must provide the Department with information on the academic achievement of students receiving SES by school within the seven participating LEAs within one month of the date that each of the districts receives its 2006-07 assessment results.

  • The State must provide parents in pilot LEAs access to a variety of SES providers, as demonstrated by the following:

    1. Maintaining a comprehensive list of SES providers (e.g. nonprofit, for-profit, faith- and community-based, online).
    2. Ensuring that at least two providers from which parents may choose are available in each pilot LEA.
    3. Providing information to parents in pilot LEAs on school performance and student eligibility for, and enrollment in, public school choice and SES that is clear, accurate, and easily accessible, in languages parents can understand. The State may want to develop model parental notification letters and standard forms for enrolling students in choice and SES.
    4. Ensuring that pilot LEAs provide fair and equitable treatment of non-LEA providers by giving providers access to school facilities at a reasonable price and dividing space among providers in a fair manner.
    5. Ensuring that pilot LEAs allow providers to market their services to parents, and work with community and business partners to reach out to parents and provide them with information on their options.
  • The State must require pilot LEAs to notify eligible parents about SES prior to the start of the school year, or within the first few weeks of the school year and provide SES shortly thereafter.

  • The State must require pilot LEAs to offer continuous enrollment in SES or multiple SES enrollment periods throughout the 2006-07 school year until each pilot LEA spends the 20 percent required by NCLB or all students eligible for SES and choice are served.

  • The State must submit complete and accurate public school choice and SES data to the U.S. Department of Education via the Educational Data Exchange Network (EDEN) for the 2005-06 school year by the end of October 2006, and for the 2006-07 school year by the end of October 2007.

  • The State must submit to the Department a report on how it met the terms of its flexibility agreement under this pilot by June 30, 2007.

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Last Modified: 07/09/2009