takeover of schools that are failing, obviously that is not the case. I have even heard it argued that once a school has been subject to years of not making adequate yearly progress they lose Federal dollars, and that is not the case. So one of my hopes is in our conversation today that we spend time trying to dispel some of these myths. Because I think the men and women who really spend their days trying to educate America's kids deserve the facts as much as possible. Because I think the facts are on their side. With regard to flexibility, the fact is that we have made some changes in the way we recommend implementation of this law to reflect the real world challenges that implementation confronts. With special education, we have recognized that some of our most challenged students probably need to be made available to take alternative assessments, and that those assessments be part of the way you count kids for proficiency. We want to balance that with a disturbing trend in many places of not counting special education kids, because of the concern that they might bring down the average of the school. We have looked at the challenge of students with limited proficiency and we have made some recommendations regarding accountability there to make sure that, one, the law is common sense oriented. But that those students are still part of an accountability system and every effort is made to get them proficient in English as soon as possible. With the highly qualified teacher provisions, we recognize that in many places where teachers teach a variety of different subjects because of where they are, middle school, or their location in a rural area, they need additional time working with the state to get highly qualified in the content area they are teaching. And we recognize that in some areas the participation rate, which the statute sets at 95 percent, may be relatively unrealistic certainly as states that have not been experiencing higher participation rates, for whatever reason, now have to get that participation rate up. And we put together recommendations and initiatives that deal with average participation rates over time to help. To those who would argue, and we have seen this argument, that these policies reflect a watering down or back-tracking on No Child Left Behind, we would argue the exact opposite. They represent common sense attempts to help this law become a reality where the challenges are most severe. We will continue to do that, but my real message today frankly is that it is taking place, it is happening. Now when the President came to office in 2001, only 11 states were compliant with the law that had been written in 1994. A little over a year ago all the states were compliant. And right now, every state, some with more progress than others, some with more enthusiasm than others, but every state is busy trying to make No Child Left Behind a reality in that state. And I think that speaks volumes about the dedication of people like Kathy Cox and her colleagues, more importantly about the men and women who teach in our schools, because I think they are taking seriously the challenge and the opportunity this law presents. I look forward to our conversation. Thank you, Mr. Chairman. Chairman BOEHNER. Ms. Cox. [The prepared statement of Dr. Hickok follows:] Statement of Eugene Hickok, Acting Deputy Secretary of Education, U.S. Department of Education, Washington, DC Mr. Chairman and Members of the Committee: Thank you for this opportunity to testify today on the flexibility provisions in No Child Left Behind. No Child Left Behind provides a wide range of opportunities for States and school districts to tailor Federal programs to meet their unique needs and priorities. Administrators and educators at the State and local level know what is most important here in Richmond County. So while the goals and priorities set in No Child Left Behind are of critical importance, it is you at the State and local level that make it effective for your students, so that they can meet high standards. This Administration, as reflected in No Child Left Behind, is committed to empowering States and districts as they set high standards of accountability for results, thus ensuring that along with increased accountability, there is increased flexibility. In addition, the President has empowered States and districts to hold children to high standards through significant increases in Federal resources. The president's budget proposes $57.3 billion in discretionary appropriations for the Department of Education in fiscal year 2005. This represents an increase of $1.7 billion, or 3 percent, over the 2004 level, and an increase of $15.1 billion, or 36 percent, since President Bush took office in 2001. The flexibility in No Child Left Behind comes in a number of forms, but there are certain provisions that I would like to highlight in my testimony today. First, there is the flexibility we have recently provided to states in the implementation of No Child Left Behind to further expand on the freedom that States already have to develop their own State accountability systems based on State standards, and to deem teachers highly qualified based on State standards. Second, there are the groundbreaking new flexibility authorities in No Child Left Behind that give States and school districts unprecedented authority in deciding how they can use, transfer and consolidate Federal program dollars. NEW GUIDANCE AND FLEXIBILITY UNDER NCLB No Child Left Behind builds on earlier requirements in Federal law that required States to develop standards and assessments, and to hold schools accountable for making progress. In doing so, it also provides significant flexibility to States to develop a system that is truly based on their own priorities, as reflected in their State content standards. For example, No Child Left Behind asks States to set their annual goals. States determine what is "proficient" for their students. They can also use a host of statistical procedures to ensure that schools are appropriately identified as being in "school improvement." I would like to commend Georgia for its strong accountability plan, and for its past history of holding schools accountable for meeting State standards. In addition, your State thought "outside of the box" when designing your new accountability system. As you know, instead of choosing one additional indicator, this State allows its districts to select from a menu of additional indicators that are used in elementary and middle school AYP decisions over a three-year period of time. This menu includes retention rate; achievement in writing, science, and social studies; and increases in the percentage of students scoring at advanced levels. Districts in Georgia have flexibility to focus on different issues, depending on the unique needs of students in their schools. Since No Child Left Behind was signed into law, we have been working to provide the field with guidance and regulations as quickly as possible. We issued final Title I regulations in December 2002. More recently, in working with States implementing State accountability plans and visiting States to discuss teacher quality issues, we have learned about issues that confront State and local leaders; issues that we felt needed to be addressed. Students with the Most Significant Cognitive Disabilities Since 1997, States have been required to include all students with disabilities in their assessment systems. No Child Left Behind builds on that requirement to ensure that all students are part of the state accountability system. However, we also recognize that for a very small number of students with the most significant cognitive disabilities, reaching grade level standards may not be possible, even with the best instruction. On December 9 of last year, we issued a regulation addressing the inclusion of students with the most significant cognitive disabilities in State accountability and assessment systems. Based on comments from the field on the pro takeover of schools that are failing, obviously that is not the case. I have even heard it argued that once a school has been subject to years of not making adequate yearly progress they lose Federal dollars, and that is not the case. So one of my hopes is in our conversation today that we spend time trying to dispel some of these myths. Because I think the men and women who really spend their days trying to educate America's kids deserve the facts as much as possible. Because I think the facts are on their side. With regard to flexibility, the fact is that we have made some changes in the way we recommend implementation of this law to reflect the real world challenges that implementation confronts. With special education, we have recognized that some of our most challenged students probably need to be made available to take alternative assessments, and that those assessments be part of the way you count kids for proficiency. We want to balance that with a disturbing trend in many places of not counting special education kids, because of the concern that they might bring down the average of the school. We have looked at the challenge of students with limited proficiency and we have made some recommendations regarding accountability there to make sure that, one, the law is common sense oriented. But that those students are still part of an accountability system and every effort is made to get them proficient in English as soon as possible. With the highly qualified teacher provisions, we recognize that in many places where teachers teach a variety of different subjects because of where they are, middle school, or their location in a rural area, they need additional time working with the state to get highly qualified in the content area they are teaching. And we recognize that in some areas the participation rate, which the statute sets at 95 percent, may be relatively unrealistic certainly as states that have not been experiencing higher participation rates, for whatever reason, now have to get that participation rate up. And we put together recommendations and initiatives that deal with average participation rates over time to help. To those who would argue, and we have seen this argument, that these policies reflect a watering down or back-tracking on No Child Left Behind, we would argue the exact opposite. They represent common sense attempts to help this law become a reality where the challenges are most severe. We will continue to do that, but my real message today frankly is that it is taking place, it is happening. Now when the President came to office in 2001, only 11 states were compliant with the law that had been written in 1994. A little over a year ago all the states were compliant. And right now, every state, some with more progress than others, some with more enthusiasm than others, but every state is busy trying to make No Child Left Behind a reality in that state. And I think that speaks volumes about the dedication of people like Kathy Cox and her colleagues, more importantly about the men and women who teach in our schools, because I think they are taking seriously the challenge and the opportunity this law presents. I look forward to our conversation. Thank you, Mr. Chairman. Chairman BOEHNER. Ms. Cox. [The prepared statement of Dr. Hickok follows:] Statement of Eugene Hickok, Acting Deputy Secretary of Education, U.S. Department of Education, Washington, DC Mr. Chairman and Members of the Committee: Thank you for this opportunity to testify today on the flexibility provisions in No Child Left Behind. No Child Left Behind provides a wide range of opportunities for States and school districts to tailor Federal programs to meet their unique needs and priorities. Administrators and educators at the State and local level know what is most important here in Richmond County. So while the goals and priorities set in No Child Left Behind are of critical importance, it is you at the State and local level that make it effective for your students, so that they can meet high standards. This Administration, as reflected in No Child Left Behind, is committed to empowering States and districts as they set high standards of accountability for results, thus ensuring that along with increased accountability, there is increased flexibility. In addition, the President has empowered States and districts to hold children to high standards through significant increases in Federal resources. The president's budget proposes $57.3 billion in discretionary appropriations for the Department of Education in fiscal year 2005. This represents an increase of $1.7 billion, or 3 percent, over the 2004 level, and an increase of $15.1 billion, or 36 percent, since President Bush took office in 2001. The flexibility in No Child Left Behind comes in a number of forms, but there are certain provisions that I would like to highlight in my testimony today. First, there is the flexibility we have recently provided to states in the implementation of No Child Left Behind to further expand on the freedom that States already have to develop their own State accountability systems based on State standards, and to deem teachers highly qualified based on State standards. Second, there are the groundbreaking new flexibility authorities in No Child Left Behind that give States and school districts unprecedented authority in deciding how they can use, transfer and consolidate Federal program dollars. NEW GUIDANCE AND FLEXIBILITY UNDER NCLB No Child Left Behind builds on earlier requirements in Federal law that required States to develop standards and assessments, and to hold schools accountable for making progress. In doing so, it also provides significant flexibility to States to develop a system that is truly based on their own priorities, as reflected in their State content standards. For example, No Child Left Behind asks States to set their annual goals. States determine what is “proficient” for their students. They can also use a host of statistical procedures to ensure that schools are appropriately identified as being in "school improvement." I would like to commend Georgia for its strong accountability plan, and for its past history of holding schools accountable for meeting State standards. In addition, your State thought "outside of the box" when designing your new accountability system. As you know, instead of choosing one additional indicator, this State allows its districts to select from a menu of additional indicators that are used in elementary and middle school AYP decisions over a three-year period of time. This menu includes retention rate; achievement in writing, science, and social studies; and increases in the percentage of students scoring at advanced levels. Districts in Georgia have flexibility to focus on different issues, depending on the unique needs of students in their schools. Since No Child Left Behind was signed into law, we have been working to provide the field with guidance and regulations as quickly as possible. We issued final Title I regulations in December 2002. More recently, in working with States implementing State accountability plans and visiting States to discuss teacher quality issues, we have learned about issues that confront State and local leaders; issues that we felt needed to be addressed. Students with the Most Significant Cognitive Disabilities Since 1997, States have been required to include all students with disabilities in their assessment systems. No Child Left Behind builds on that requirement to ensure that all students are part of the state accountability system. However, we also recognize that for a very small number of students with the most significant cognitive disabilities, reaching grade level standards may not be possible, even with the best instruction. On December 9 of last year, we issued a regulation addressing the inclusion of students with the most significant cognitive disabilities in State accountability and assessment systems. Based on comments from the field on the pro posed regulation, this rule clarifies that when measuring AYP, States, school districts, and schools may count the "proficient" scores of students with the most significant cognitive disabilities who take assessments based on alternate achievement standards. As many as 1 percent of all students in the grades tested (about 9 percent of students with disabilities) may have their scores counted as "proficient" based on alternate achievement standards. States and school districts may apply for a higher limit if they demonstrate that they have a larger population of students with significant cognitive disabilities. Without this flexibility, those students would have to be measured against gradelevel standards and considered "not proficient." This new provision protects students, parents and teachers while providing flexibility to States, districts and schools to receive credit for the progress these students have made. Limited English Proficient Students Limited English proficient (LEP) students new to the United States often have a difficult time participating in state assessments due to language barriers or the lack of schooling prior to arriving in the United States from their native countries. Thus, it is often difficult to assess LEP students' content knowledge in reading and other language arts in their first year of enrollment in a U.S. public school. A number of states have students representing more than 100 languages, making it virtually impossible to provide native language assessments for all students. A second issue concerns the definition of the limited English proficient subgroup itself. The LEP subgroup's membership can change from year to year, as students who have acquired English language proficiency exit the subgroup and recently arrived students enter it. Since LEP students exit the subgroup once they attain English language proficiency, States may have difficulty demonstrating improvements on state assessments for this student subgroup. In order to address these issues, on February 20, the Secretary announced two areas in which States would have flexibility in the assessment of and accountability for LEP students: LEP students, during their first year of enrollment in U.S. schools, have the option of taking the reading/language arts content assessment in addition to taking the English language proficiency assessment. These students must also take the mathematics assessment, with accommodations as appropriate. States may, but will not be required to, include results from the mathematics and, if given, the reading/language arts content assessments in their AYP-calculations part of the accountability requirements under NCLB. Students will be counted as participants for AYP purposes for the 95 percent testing requirement, which ensures that all children count and receive the quality education they deserve. For AYP calculations, States may include in the LEP subgroup students who have attained English proficiency for up to two years. The concept of including students who have exited the LEP subgroup for up to two years is consistent with Title III of the law, which requires Title III-funded schools to include in their evaluations for two years academic achievement data of students who used to be in the LEP group but who no longer receive Title III services. This flexibility provides teachers and students more time for English language instruction and acquisition. It gives States the flexibility to ensure that AYP calculations credit schools and districts for improving English language proficiency from year to year. The option to consider students to be LEP for two years after they exit the category provides an incentive for states to help students attain full proficiency in both the English language and in the academic content areas of reading/ language arts and mathematics. It also serves as a response to the complaint that schools do not receive credit for the good work they have done helping LEP students attain full proficiency. We are in the process of issuing a proposed regulation and will take comments on these policies and issue a final regulation later this year. However, this policy is in effect for the current school year. Highly Qualified Teachers In order to help States and school districts meet these and other challenges in complying with the highly qualified teacher requirements of No Child Left Behind, on March 15, the Secretary issued new guidance that both clarified existing flexibility and provided additional flexibility to meet these requirements. One key change affects the nearly 5,000 districts that are defined as small and rural under Title VI of the Elementary and Secondary Education Act. Such districts are allowed to employ middle or secondary school teachers provisionally to teach multiple subjects even if they do not meet all the criteria for a highly qualified |