Key Policy Letters Signed by the Education Secretary or Deputy Secretary
February 20, 2004
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Dear Colleague:

As we implement the No Child Left Behind Act of 2001 (NCLB), [which amended the Elementary and Secondary Education Act (ESEA)], I have been talking with parents, teachers, and administrators around the country regarding the impact the law is having on improving student achievement. Through many conversations and our own analysis, I have concluded that additional flexibility is needed to ensure that NCLB supports and improves the educational opportunities for all students, especially limited English proficient (LEP) students. In reaching our shared national goal of seeing all students achieve at grade level, we know that LEP students bring with them unique issues from their past educational experiences and circumstances.

As a diverse nation, we educate students from many different countries. Often, these newly arriving students have a difficult time participating in State assessments due to language barriers or schooling experiences in their native country. A number of States have students representing more than a hundred languages. This makes it quite difficult to provide native language assessments for all students, and available accommodations may not fully address the challenges these students face.

A second concern is the instructional needs of the students in the LEP subgroup. This subgroup is not a discrete demographic subgroup per se, but rather a subgroup described by instructional needs that change as students gain English language proficiency. Its membership can change from year to year as English proficient students exit the subgroup and new students enter. Because LEP students exit once they attain English language proficiency, schools may not be able to demonstrate improvements the LEP student subgroup has made in academic achievement.

To ensure that LEP students and the schools they attend are well served in the implementation of NCLB, I am providing additional flexibility to States. This letter provides new guidance concerning LEP students and outlines steps we are taking to provide more flexibility to States and school districts.

Before describing the new guidance, I want to review the flexibility already available to States with respect to the LEP student subgroup. First, the definition in NCLB of a limited English proficient student [§9101(25) of the ESEA] gives States flexibility in defining the students who constitute the LEP subgroup for the purposes of the law, including determining adequate yearly progress (AYP). For example, a number of States narrowly define the LEP subgroup as only those students receiving direct, daily LEP services. States could instead define the subgroup more broadly to include both students receiving direct services and students being monitored based on their achievement on academic assessments. For example, in a few States, students are considered to be LEP until they score proficient on the State's assessment of English language proficiency and proficient on the State's academic content assessments for multiple years.

A second area of flexibility already available to States is the determination of the minimum number of students that constitutes a subgroup for accountability purposes. States have some flexibility in setting a different AYP group size for LEP students, which can improve the measurement of progress.

It should be noted that the statute acknowledges that teachers need sufficient time with their students to provide high-quality instruction before it is appropriate to hold a particular school accountable. In calculating AYP determinations for schools and districts, therefore, a State may only use the assessment scores of students enrolled in a school or district for a full academic year [§1111(b)(3)(C)(xi)]. For example, some States have defined full academic year as enrollment from some predetermined "head count" date in the fall to test administration. Full academic year definitions result in schools being held accountable under AYP only for the achievement of students they have had an opportunity to teach for at least a full academic year.

Moreover, States, with the support of funds provided through NCLB, are developing better assessments and accommodations for LEP students. A few States are creating assessments for LEP students that will serve the dual purposes of assessing a student's academic knowledge in reading/language arts as well as the student's English language proficiency. Other States are working together to develop more, and better, accommodations for LEP students. The U.S. Department of Education's Office of Elementary and Secondary Education and Office of English Language Acquisition have provided a great deal of technical assistance to States over the past years to improve assessments for LEP students and to implement an integrated system of standards and assessments. These offices will continue this important assistance. These efforts will certainly improve the overall assessment system for LEP students and offer better opportunities for LEP students to demonstrate their achievement.

In addition to the flexibility described above, as a matter of policy in holding States accountable under the law, I am authorizing the following elements of flexibility that States may implement for ensuring more effective LEP student participation in their State assessments and for making AYP determinations for the 2004-05 school year, based on data from assessments administered during the 2003-04 school year, including those given during Fall 2003. Please note that these policies cannot be applied to assessments administered during the 2002-03 school year or AYP determinations based on the data from the 2002-03 assessments. This policy will remain in effect until the Department issues final regulations.

Flexibility in Assessing New Limited English Proficient Students
For purposes of participation in a State's assessment system, LEP students, during their first year of enrollment in U.S. schools, must take an English proficiency assessment [§1111(b)(7)], and may participate in the reading/language arts assessment [§1111(b)(3)]. The assessment results of first-year LEP students who take the reading/language arts assessment are not required to be included in AYP determinations, even if the student has been enrolled in the school or district for a full academic year as defined by the State. If these students take the English language proficiency assessment and/or the reading/language arts assessment, then they can be counted as participants toward meeting the 95 percent assessment participation requirement for AYP determinations for reading. Even if LEP students do not take the reading/language arts assessment during their first year in U.S. schools, this year must be considered the first of the three years in which a student may take the reading/language arts assessment in their native language [§1111(b)(3)(C)(x)].

These students must take the State's mathematics assessment [§1111(b)(3)], with accommodations as necessary, but States are not required to include in AYP determinations LEP students' assessment results from the mathematics assessments during their first year in U.S. schools, even if the student has been enrolled in the school or district for a full academic year as defined by the State. When these students take the mathematics assessment, then they are counted as participants toward meeting the 95 percent assessment participation requirement for AYP determinations for mathematics.

Flexibility in Measuring Adequate Yearly Progress
A State may include in the LEP subgroup a student who had previously been considered an LEP student during the past one or two years, to calculate AYP for schools, districts, and the State. The determination of when a student has attained English proficiency and is no longer an LEP student must be consistent with the definition included in the State's accountability plan. When determining whether the LEP subgroup meets the State-defined minimum group size, these students are not required to be counted as LEP students. Further, these students are not required to continue taking the English language proficiency assessments [§1111(b)(7)], or to receive language services as LEP students. Finally, the inclusion of these students for the purposes of calculating AYP does not affect the allocation of Title III funds.

Next steps
A State must amend its accountability plan if it intends to take advantage of the flexibility in measuring adequate yearly progress described above. (Please see the February 5, 2004, letter from Assistant Secretary Ray Simon for guidance on amending State accountability plans.) Depending upon the situation, a State may also need to amend its standards and assessment plan. These amendments do not need to be submitted before a State acts on the flexibility provided in this letter, but should be submitted as soon as reasonably possible. Please work with the Office of Elementary and Secondary Education to make these determinations.

We will soon publish a Notice of Proposed Rulemaking in the Federal Register related to these issues. We look forward to receiving your comments on the forthcoming proposed regulation and will be especially interested in receiving comments that include analyses of student data. The Department is interested in better understanding how these issues are unfolding in practice and how this flexibility will affect State assessment and accountability systems.

We intend to work with States to ensure that all students are appropriately assessed, included in the accountability system, and achieve grade-level standards in reading/language arts and mathematics. Together, we can work to ensure that no child, including a child with limited English proficiency, is left behind.



Rod Paige

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Last Modified: 01/28/2010