[cd] School choice and supplemental services

Lacy, Laurie LLACY@usoe.k12.ut.us
Thu, 11 Jul 2002 18:02:10 -0600

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The attached letter from Secretary Rod Paige contains essential information
regarding schools identified for program improvement.  Most importantly, the
previous belief that a district is or will be responsible to cover the cost
of school choice related transportation is undone.  Additional valuable
information regarding school choice and supplemental services is also
covered.  Districts should read the information carefully. 

This letter is not formal regulation but should be treated as policy in the
absence of final regulations being issued.  There is no reason to believe
that guidance to be issued by the USDOE will contradict this letter.  

Best wishes,
Laurie Lacy
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<HTML><HEAD><TITLE>June 14, 2002 -- Dear Colleague Letter to education =
officials regarding implementation of No Child Left Behind and =
providing guidance on public school choice, supplemental education =
services, and collective bargaining agreements</TITLE>
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content=3D"June 14, 2002 -- Dear Colleague Letter to education =
officials regarding implementation of No Child Left Behind and =
providing guidance on public school choice, supplemental education =
services, and collective bargaining agreements"=20
content=3D"June 14, 2002 -- Dear Colleague Letter to education =
officials regarding implementation of No Child Left Behind and =
providing guidance on public school choice, supplemental education =
services, and collective bargaining agreements"=20
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<META content=3D"US Department of Education (ED)" name=3DDC.publisher>
content=3D"June 14, 2002 -- Dear Colleague Letter to education =
officials regarding implementation of No Child Left Behind and =
providing guidance on public school choice, supplemental education =
services, and collective bargaining agreements"=20
<META content=3Den name=3DDC.language scheme=3D"ISO 639-2">
<META content=3D"Office of the Secretary (OS)" name=3DED.office =
<META content=3D2002-06-14 name=3DDC.date.valid scheme=3D"ISO 8601">
content=3D"Elementary Secondary Education; School Choice; Supplementary =
Education; Collective Bargaining"=20
name=3DDC.subject scheme=3D"EDWeb" type=3D"descriptor">
content=3D"Elementary Secondary Education; School Choice; Supplementary =
Education; Collective Bargaining; "=20
<META content=3D"Superintendents; State Education Agencies" =
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<BODY link=3D#336699 bgColor=3D#ffffff><FONT size=3D2><I>Key Policy =
Letters Signed by=20
the Education Secretary or Deputy Secretary</I></FONT>=20

<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
      <TABLE width=3D"100%" border=3D0>
          <TD width=3D"25%"><IMG height=3D72 alt=3D""=20
            src=3D"NCLBSupServletter_files/edseal.jpg" width=3D72 =
          <TD vAlign=3Dtop align=3Dmiddle width=3D"55%"><FONT =
            size=3D2><STRONG>THE SECRETARY OF =
            D.C. 20202</FONT></TD>
          <TD width=3D"25%"><BR></TD></TR></TBODY></TABLE>
      <P align=3Dcenter>June 14, 2002</P>
      <P>Dear Colleague:</P>
      <P>As you know, on January 8, 2002, President Bush signed into =
law the=20
      <I>No Child Left Behind Act of 2001 </I>(NCLBA). I am excited =
about this=20
      landmark legislation, as I believe it provides a critical road =
map for=20
      bringing about real improvement in student achievement. </P>
      <P>The NCLBA will substantially affect the 2002-2003 school year, =
      given our short timeline for implementation, I wanted to provide =
you with=20
      preliminary guidance on public school choice, supplemental =
      services, and collective bargaining agreements--three key issues =
that will=20
      affect your planning processes for this fall. This guidance is =
      exhaustive and does not cover every possible nuance of the law. =
Rather, it=20
      is intended to give initial direction to you as you proceed this =
      with implementing these programs for the start of the school =
year, with=20
      the understanding that additional guidance and/or draft =
regulations on=20
      these matters, as well as on other matters, will be provided in =
the near=20
      future. Once again, because the law requires implementation of =
      programs to begin this coming school year, I want to reiterate =
that your=20
      planning processes for this should be underway.</P>
      <P>The context for public school choice, supplemental education =
      and collective bargaining agreements is the accountability =
provisions in=20
      the Title I program. Under the NCLBA, each state must establish a =

      definition of "adequate yearly progress" to use each year to =
determine the=20
      achievement of each school district and school. School districts =
      identify for improvement any Title I school that fails to meet =
the state's=20
      definition of adequate yearly progress for two consecutive years. =
      schools, with technical assistance from their school districts, =
      develop and implement improvement plans incorporating various =
      to strengthen instruction in the core academic subjects in the =
school and=20
      addressing the specific issues that caused the school to fail. As =

      discussed below, these schools must also provide public school =
choice and=20
      supplemental education services. </P>
      <P align=3Dcenter><B>I. Public School Choice</B></P>
      <P><B>In General.</B> In the case of any Title I elementary or =
      school identified for school improvement, the school district is =
      to provide all students enrolled in the school with the option to =
      to another public school in the school district--which may =
include a=20
      public charter school--that has not been identified for =
improvement. This=20
      choice requirement applies unless state law specifically =
prohibits choice.=20
      <P>I recognize that some states and school districts have already =
      planning for choice for the 2002-2003 school year. Indeed, =
<I><B>the new=20
      choice requirements must be implemented beginning this =
fall</B></I>. As=20
      you continue your planning, I strongly encourage you to provide =
      choice options for parents. Parents should be provided a =
reasonable amount=20
      of time to consider their</P>
      <P align=3Dcenter><I><FONT color=3D#336699 size=3D1>Our mission =
is to ensure=20
      equal access to education and to promote educational excellence =
      the Nation.</FONT></I></P></TD></TR></TBODY></TABLE></CENTER>
<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
    <TD vAlign=3Dtop>
      <P>Page 2</P>
      <P>options, be given concise but detailed information on the =
      and overall quality of the receiving schools, and be provided an=20
      opportunity to visit potential schools of choice. </P>
      <P><B>Schools Identified for Improvement Prior to Enactment.</B> =
The NCLBA=20
      includes specific transition provisions governing schools that =
      identified for improvement under the prior law. With one =
exception stated=20
      under the law, choice must be provided at the beginning of the =
      school year to all students in schools that have been identified =
      improvement (based on adequate yearly progress under the =
pre-NCLBA) as of=20
      January 7, 2002. The exception is if a school that is in school=20
      improvement on January 7 makes its second year of adequate yearly =
      based on its 2002 assessment results, the district is not =
required to=20
      provide choice to the students in that school. <I><B>School =
      should begin planning now, if they have not begun already, to =
make choice=20
      available for students in any school that was in school =
improvement status=20
      as of January 7, 2002. </B></I></P>
      <P><B>Capacity.</B> A school district is obligated to provide =
choice to=20
      all eligible students, subject to health and safety code =
      (regarding facility capacity). Transferring students should be =
treated as=20
      students who have moved into the receiving school's attendance =
zone and=20
      allowed to enroll in class and other activities on the same basis =
as other=20
      children in the school. </P>
      <P><B>Priority for Low-Achieving Students in Low-Income =
      Among students exercising choice, school districts must give =
priority to=20
      the lowest-achieving students from low-income families. In other =
      these students have priority among school options offered under =
the NCLBA=20
      and priority for transportation if funds for transportation are =
      for that purpose. However, it would be inappropriate to remove =
      already accepted at a school to make room for those students =
      choice. </P>
      <P><B>Magnet and Special Focus Schools.</B> School districts need =
      disregard entrance requirements based on academic or other skills =
      schools for the gifted and talented, math or science schools, or =
      similar schools. </P>
      <P><B>Transportation.</B> If a student exercises the option to =
transfer to=20
      another public school, the school district has certain =
obligations to=20
      provide or pay for with federal funds the student's =
transportation to the=20
      new school. The school district's obligation for choice-related=20
      transportation and supplemental education services is equal to 20 =
      of its Title I, Part A allocation. Within the 20 percent, a =
district must=20
      spend: (1) an amount equal to 5 percent for choice-related =
      (2) an amount equal to 5 percent for supplemental education =
services; and=20
      (3) an amount equal to 10 percent for transportation or =
      education services, or both, as the district determines. This =
      may be satisfied through use of regular Title I, Part A funds, =
      improvement funds under Section 1003, or Title V, Part A funds.=20
      Additionally, school districts may use funds transferred to Title =
I from=20
      other federal education programs under Section 6123 to pay such =
      Programs eligible for such transfers include Title II, Part A =
      Teacher Quality State Grants; Title II, Part D Educational =
      State Grants; Title IV, Part A Safe and Drug-Free Schools and =
      State Grants; and Title V, Part A State Grants for Innovative =
      Nothing in the NCLBA prohibits a district from spending more for=20
      transportation. Furthermore, a school district is not prohibited =
      spending state or local funds, if it wishes, to assist in paying =
<P> </P>
<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
    <TD vAlign=3Dtop>
      <P>Page 3</P>
      <P>The school district's obligation to provide transportation for =
      student ends at the end of the school year if the school from =
which the=20
      student transferred is no longer identified by the school =
district for=20
      school improvement, corrective action, or restructuring. </P>
      <P><B>Desegregation.</B> A school district that is subject to a=20
      desegregation plan--whether voluntary, court ordered, or under an =

      agreement with a federal or state administrative agency--is not =
      from the public school choice requirements. In determining how to =
      students with the option to transfer to another school, the =
      district may take into account the requirements of the =
desegregation plan.=20
      If a desegregation plan forbids the school district from offering =
      transfer option, the school district should secure appropriate =
changes to=20
      the plan to permit compliance with the public school choice =
      <P><B>Cooperative Agreements with Other School Districts.</B> =
There may be=20
      very limited circumstances under which public school choice may =
not be=20
      possible, particularly in some sparsely populated areas. For =
      school districts with only one school at a particular grade =
level, or=20
      districts in which all schools at a grade level are identified =
      improvement, will not be able to offer choice. In such cases, =
      are encouraged to establish cooperative agreements with other =
      school districts to permit transfers. Furthermore, in the very =
      circumstances where choice is not possible and in accordance with =
      spirit of the NCLBA, I strongly encourage school districts to =
      offering supplemental education services or other choices in =
curriculum or=20
      instruction such as distance learning. </P>
      <P align=3Dcenter><B>II. Supplemental Education Services</B></P>
      <P><B>In General.</B> In the case of a Title I school in the =
second year=20
      of school improvement, the school district is required to arrange =
for the=20
      provision of supplemental education services for eligible =
      enrolled in the school. The provider of the services must have a=20
      demonstrated record of effectiveness and be selected by parents =
from a=20
      list of providers approved by the state. These supplemental =
services must=20
      be provided beginning in the 2002-2003 school year. Supplemental =
      services are extra academic assistance for low-income students =
who are=20
      attending Title I schools that have failed to make adequate =
      progress for three or more years. The purpose of these services =
is to=20
      ensure that these students increase their academic achievement,=20
      particularly in reading, language arts, and mathematics. These =
      services may include assistance such as tutoring, remediation, =
      academic intervention. Instruction must take place outside the =
      school day, such as before or after school, on weekends, or =
during the=20
      summer. Supplemental education services must be of high quality, =
      based, and specifically designed to increase student academic =
      Once again, I want to reiterate that the law requires that these=20
      opportunities be afforded to children beginning this fall.</P>
      <P><B>Schools Identified for Improvement Prior to Enactment.</B> =
Title I=20
      schools that have been identified for school improvement for two =
or more=20
      consecutive years as of January 7, 2002,<I><B> must</B></I> begin =
      supplemental education services at the beginning of the 2002-2003 =
      year. As noted above, however, if a school in improvement on =
January 7=20
      makes its second year of adequate yearly progress based on its =
      assessment results, the district is not required to provide =
      education services to eligible students in that=20
<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
    <TD vAlign=3Dtop>
      <P>Page 4</P>
      <P><B>Parents.</B> Parents choose the supplemental education =
      provider for their children from among the providers approved by =
the state=20
      for their school district. In general, the school district must =
work to=20
      ensure parents have good, easy-to-understand information about=20
      supplemental education services. School districts must provide =
      with information on the availability of supplemental education =
      the identity of approved service providers, and, at a minimum, a =
      description of the services, qualifications, and demonstrated=20
      effectiveness of each provider. School districts may provide =
      information, as appropriate. Such communications with parents =
must occur=20
      at least annually and must be in an understandable and uniform =
format. To=20
      the extent possible, communications must also be in a language =
parents can=20
      understand. </P>
      <P>At the state level, parents should be consulted to promote=20
      participation by a greater variety of providers and to develop =
      for identifying high-quality providers. States, however, are =
      responsible for identifying eligible providers from among which =
      may choose. </P>
      <P>At the provider level, parents, the school district, and the =
      chosen by the parents must develop and identify specific academic =

      achievement goals for the student, measures of student progress, =
and a=20
      timetable for improving achievement. </P>
      <P><B>Eligible Children.</B> Eligible children are those children =
      low-income families attending Title I schools that have failed to =
      adequate yearly progress for three consecutive years or more, as =
      above. In circumstances where more students request services than =
      school district can fund, the school district must place a =
priority on=20
      serving those low-income students who are the lowest achieving. =
      <P><B>Per-Pupil Spending Limit.</B> School districts are limited =
in how=20
      much they can spend to provide services for each child. The limit =
is what=20
      they receive in Title I funding per low-income child or the cost =
of the=20
      services themselves. Specifically, school districts must provide =
      for supplemental education services for each participating child =
in an=20
      amount which is the lesser of the following: (1) the school =
      Title I, Part A allocation, as determined by the state education =
      divided by the number of children from families below the poverty =
      (based on Census poverty data, not federal school lunch data) in =
      school district; or (2) the actual costs of the supplemental =
      services received by each child. </P>
      <P><B>Identification by States of Supplemental Education Service=20
      Providers. </B>State education agencies must develop and apply =
      criteria for identifying supplemental education service =
providers. The=20
      state education agency must also consult with parents, teachers, =
      districts, and interested members of the public to identify a =
wide array=20
      of supplemental education service providers so that parents can =
have a=20
      wide variety of choices. The state education agency must update =
      state-level list of approved providers on at least an annual =
basis and=20
      must provide a list for school districts of those providers =
available in=20
      their geographic locations. </P>
      <P>Criteria developed by the state education agency for =
identification of=20
      providers must include: (1) a demonstrated record of =
effectiveness in=20
      improving student academic achievement; (2) documentation that =
      instructional strategies used by the provider are high quality, =
based upon=20
      research, and designed to increase student academic achievement; =
      evidence that</P></TD></TR></TBODY></TABLE>
<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
    <TD vAlign=3Dtop height=3D898>
      <P>Page 5</P>
      <P>services are consistent with the instructional program of the =
      district and with state academic content standards; and (4) =
evidence that=20
      the provider is financially sound. </P>
      <P>With respect to the first criterion, each state education =
agency is=20
      responsible for defining what would be acceptable evidence of=20
      effectiveness. Acceptable evidence may include significant =
improvement in=20
      student academic achievement, successful use of instructional =
      based on sound research or of documented success by other =
      successful and sustained remediation of reading or math =
difficulties, or=20
      use of a program that others have successfully used to improve =
      academic achievement. </P>
      <P>State education agencies may not require supplemental =
education service=20
      providers to hire only certified teachers in order to be eligible =

      providers. </P>
      <P>Providers shall not be disqualified on the grounds that their=20
      documentation of instructional strategies does not include =
      based research" (as such term is defined in the=20
      NCLBA).<BR><BR><B>Supplemental Education Service Providers.</B> A =
      entity (public or private), an institution of higher education =
(public or=20
      private), or a nonprofit or for-profit organization can all be =
      for inclusion on the state-approved list of supplemental =
education service=20
      providers. Faith-based organizations can also be considered for =
      as state-approved providers. The state must apply all criteria=20
      consistently when selecting approved providers. </P>
      <P><B>Distance-Learning Technology.</B> Providers that utilize=20
      distance-learning technology do not have to meet different =
criteria; they=20
      are eligible if they meet the criteria established by the state =
      agency for all providers. The law states that providers must be =
within the=20
      school district or the providers' services must be reasonably =
available in=20
      neighboring education agencies. The provider of distance-learning =

      supplemental education services does not have to be located in =
the school=20
      district to meet this requirement; only the services need to be =
      We would encourage the use of distance learning in rural areas =
and other=20
      areas where parents have a limited number of providers available =
in their=20
      <P><B>Charter Schools.</B> If a charter school, as a part of a =
      district, receives Title I, Part A funds and meets the =
      criterion of being identified as a school that fails to make =
      yearly progress for three or more years, the school district must =
      supplemental education services, and the school district is =
      for funding such services, just as for the other public schools =
in the=20
      school district.</P>
      <P>If the charter school is itself considered a school district =
      state law and receives Title I, Part A funds, it is responsible =
      ensuring that eligible students receive supplemental education =
      from approved providers and must fund such services.</P>
      <P><B>Transportation.</B> School districts may, at their =
discretion, use=20
      funds reserved for supplemental education services to transport =
      to and from approved providers.</P></TD></TR></TBODY></TABLE>
<TABLE cellPadding=3D20 width=3D"95%" border=3D1>
    <TD vAlign=3Dtop>
      <P>Page 6</P>
      <P align=3Dcenter><B>III. Collective Bargaining =
      <P>The Department has received many inquiries regarding the =
impact of the=20
      new law on existing collective bargaining unit agreements. The =
      provides that nothing in Section 1116 (academic assessment and =
      education agency and school improvement) shall be construed to =
alter or=20
      otherwise affect the rights, remedies, and procedures afforded =
school and=20
      school district employees under federal, state, or local laws or =
under the=20
      terms of collective bargaining agreements, memoranda of =
understanding, or=20
      other agreements between such employees and their employers. =
Section 1116=20
      does not operate to invalidate employee protections that exist =
      current law and collective bargaining and similar labor =
      However, it does not exempt state education agencies, local =
      agencies, and schools from compliance with Title I based on =
      collective bargaining or similar agreements or changes in state =
or local=20
      law. State and local education authorities, as well as state =
      and local governing boards, need to ensure that changes in state =
and local=20
      laws are consistent with Title I requirements and that any =
changes to=20
      collective bargaining agreements or new agreements are also =
      with Title I. </P>
      <P>With respect to the selection of supplemental education =
      providers, there is no requirement in the NCLBA that parents give =

      preference to parties to the collective bargaining agreements. As =
      know, parents select the supplemental service provider, and =
parents are=20
      not parties to collective bargaining agreements.</P>
      <P>Thank you again for your kind attention to these matters. =
Please let me=20
      reiterate that this letter is intended to provide preliminary =
guidance on=20
      public school choice, supplemental education services, and =
      bargaining agreements. The Department will provide additional =
      and/or draft regulations on these matters, as well as other =
matters, in=20
      the near future. Please do not delay the planning process. I am =
      that the new statute, together with this initial guidance, will =
enable you=20
      to promptly move ahead in preparation for the 2002-2003 school=20
      <P align=3Dcenter>Sincerely,</P>
      <P align=3Dcenter>/s/</P>
      <P align=3Dcenter>Rod Paige</P>
      <P align=3Dcenter>&nbsp;</P>
      <P align=3Dcenter>&nbsp;</P>
      <P align=3Dcenter>&nbsp;</P>
      <P align=3Dcenter>&nbsp;</P>
      <P align=3Dcenter>&nbsp;</P>
      <P align=3Dcenter>&nbsp;</P></TD></TR></TBODY></TABLE></CENTER>
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