Text: S.3770 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in Senate (09/13/2010)


111th CONGRESS
2d Session
S. 3770


To amend the Elementary and Secondary Education Act of 1965 to improve elementary and secondary education.


IN THE SENATE OF THE UNITED STATES

September 13, 2010

Mr. Feingold (for himself and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions


A BILL

To amend the Elementary and Secondary Education Act of 1965 to improve elementary and secondary education.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Flexibility and Innovation in Education Act”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. References.

Sec. 3. Findings.

Sec. 4. State and local flexibility in assessment and accountability models.

Sec. 5. Privacy protections for data systems.

Sec. 6. Improvements to the peer review process.

Sec. 7. Disaggregation of graduation rates.

SEC. 2. References.

Except as otherwise expressly provided, whenever in this Act an amendment or revision is expressed in terms of an amendment to, or revision of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.).

SEC. 3. Findings.

Congress makes the following findings:

(1) State and local governments bear the majority of the cost of and responsibility for educating public elementary school and secondary school students.

(2) State and local governments often struggle to find adequate funding to provide basic educational services.

(3) The Federal Government has not provided its full share of funding for numerous federally mandated elementary and secondary education programs.

(4) Underfunded Federal education mandates increase financial pressures on States and local educational agencies.

(5) States and local educational agencies are facing increased costs when implementing the annual student academic assessments required under section 1111(b)(3)(C)(vii) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311(b)(3)(C)(vii)).

(6) Multiple measures of student academic achievement on various methods of assessment provide a more complete picture of a student’s strengths and weaknesses than does a single score on a high stakes standardized test.

SEC. 4. State and local flexibility in assessment and accountability models.

(a) Accountability definition changes.—Section 1111(b)(2)(A) (20 U.S.C. 6311(b)(2)(A)) is amended—

(1) in the matter preceding clause (i), by striking “under this paragraph.” and inserting “, as defined in the State plan in accordance with this paragraph and which may be measured in terms of adequate yearly growth in accordance with subparagraph (L).”; and

(2) in clause (iii), by striking “sanctions” and inserting “proven interventions”.

(b) Adequate yearly progress changes.—Section 1111(b)(2) (as amended by subsection (a)) (20 U.S.C. 6311(b)(2)) is further amended—

(1) in subparagraph (B)—

(A) by inserting “and, other academic indicators, as selected by the State in accordance with subparagraph (C)(vii)” after “assessments described in paragraph (3)”; and

(B) by inserting “(which may be measured in terms of adequate yearly growth in accordance with subparagraph (L))” after “adequate yearly progress”; and

(2) in subparagraph (D)—

(A) in clause (i), by striking “and” after the semicolon;

(B) by striking clause (ii) and inserting the following:

“(ii) in order to provide a more accurate determination of school improvement and subject to subparagraph (C)(iv) and the approval of the Secretary, may elect to use other academic indicators described in clauses (vi) and (vii) of subparagraph (C) (except for locally administered assessments) to determine which schools and local educational agencies are identified for school improvement, corrective action, or restructuring under section 1116; and”; and

(C) by adding at the end the following:

“(iii) shall ensure that the academic assessments described in paragraph (3) represent not less than 50 percent of the factors used to determine how academic achievement is measured for purposes of determining adequate yearly progress.”.

(c) Adequate yearly growth.—Section 1111(b)(2) (20 U.S.C. 6311(b)(2)) is further amended—

(1) in subparagraph (F), by inserting “or, in the case of a State measuring adequate yearly progress in terms of adequate yearly growth in accordance with subparagraph (L), all students in each group described in subparagraph (C)(v) will meet the State's definition of adequate yearly growth” before the period at the end; and

(2) by adding at the end the following:

“(L) ADEQUATE YEARLY GROWTH.—Notwithstanding any other provision of this Act, a State may elect in the State plan to measure adequate yearly progress in terms of adequate yearly growth if the State has developed a definition of adequate yearly growth for the students in the State that has been approved by the Secretary. In the case of a State that makes such an election and that has obtained approval of the State's definition of adequate yearly growth, all requirements of this paragraph with respect to adequate yearly progress shall apply to such State, except that—

“(i) Statewide annual measurable objectives shall, in lieu of the requirements of clauses (iii) and (iv) of subparagraph (G)—

“(I) identify a minimum percentage of students who are required to meet a certain level of adequate yearly growth, as defined by the State; and

“(II) ensure that all students will meet the State's definition of adequate yearly growth within the State's timeline under subparagraph (F); and

“(ii) the exception described in subparagraph (I)(i) regarding groups of students that do not meet the objectives shall not apply to schools in such State.”.

(d) State flexibility To design growth models.—Section 1111(b)(2) (20 U.S.C. 6311(b)(2)) is further amended by adding at the end the following:

“(M) STATE FLEXIBILITY TO DESIGN GROWTH MODELS.—

“(i) IN GENERAL.—Notwithstanding any other provisions of this section, in carrying out this section a State may choose to develop and use a growth model accountability system for the purposes of determining adequate yearly progress by measuring adequate yearly growth in accordance with subparagraph (L).

“(ii) REQUIREMENTS FOR GROWTH MODELS.—A growth model accountability system referred to in clause (i) shall meet the following requirements:

“(I) VALID, RELIABLE, AND ACCURATE MEASURES.—The growth model uses valid, reliable, and accurate measures.

“(II) SUFFICIENT TECHNICAL QUALITY AND CAPACITY.—The growth model has sufficient technical quality and technical capacity to ensure the growth model can function fairly and accurately for each student.

“(III) STATEWIDE PRIVACY-PROTECTED DATA SYSTEM.—The growth model has a statewide privacy-protected data system capable of tracking individual students’ growth.

“(IV) ANNUAL ASSESSMENTS.—The State annually assesses students in grades 3 through 8 and once in grades 9 through 12 and such assessments produce reliable results in each grade and from year to year.

“(V) PERFORMANCE MEASURES OR GROWTH TARGETS.—The State may set performance measures or growth targets based on a student’s current academic level, but may not set performance measures or growth targets for students on the basis of the student’s membership in 1 of the groups listed in subparagraph (C)(v)(II).

“(VI) ABILITY TO EVALUATE.—The State is able to evaluate student gains or progress in, at a minimum, mathematics and reading or language arts.

“(iii) LIMITATION.—Paragraph (3)(E) shall not apply to a State that chooses to use a growth model accountability system under this subparagraph.”.

(e) Multiple measures of assessment.—Section 1111(b)(3) is further amended—

(1) in subparagraph (C)—

(A) in clause (xiv), by striking “and” after the semicolon;

(B) in clause (xv), by striking the period and inserting “; and”; and

(C) by adding at the end the following:

“(xvi) if the State chooses, include other valid and reliable assessments, including performance assessments, technology-based assessments, thorough course assessments, adaptive assessments, and appropriate assessments for students with disabilities and English language learners, that—

“(I) are aligned with the State’s academic content standards and student academic achievement standards;

“(II) are capable of measuring student academic growth;

“(III) are fair, valid, reliable, and capable of producing comparable and disaggregated results for all students, including all student subgroups described in section 1111(b)(2)(C)(v)(II);

“(IV) are able to measure readiness for postsecondary education or the workplace;

“(V) use scoring mechanisms that enable the assessments to be scored in such a way as to produce fair, valid, reliable, and comparable results for all students;

“(VI) have been approved through the peer-review process described in subsection (e);

“(VII) measure higher-order thinking skills;

“(VIII) produce evidence about student learning and achievement in a timely manner; and

“(IX) provide teachers with meaningful feedback so that the teachers can modify, improve, and target instructional strategies based on individual student need.”.

(f) State flexibility To test in grade spans.—Section 1111(b)(3) (20 U.S.C. 6311(b)(3)) is further amended by adding at the end the following:

“(E) STATE FLEXIBILITY TO TEST IN GRADE SPANS.—

“(i) IN GENERAL.—Notwithstanding clauses (v) and (vii) of subparagraph (C) or any other provision in this Act and subject to clause (ii), a State may elect to administer the assessments required under this paragraph not less than—

“(I) once during grades 3 through 5;

“(II) once during grades 6 through 8; and

“(III) once during grades 9 through 12.

“(ii) REQUIREMENTS.—If a State exercises the flexibility regarding administering assessments provided under clause (i), the State shall ensure that the State has statewide systems in place to monitor and report the academic progress and growth of students in core academic subjects in grades for which the State is not administering the assessments under this paragraph.”.

SEC. 5. Privacy protections for data systems.

Subpart 1 of part A of title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311 et seq.) is amended by adding at the end the following:

“SEC. 1120C. Privacy protections for data systems.

“(a) In general.—Each State receiving a grant under this part shall implement measures to—

“(1) limit the use of information in a statewide education data system by a State educational agency, a local educational agency, or an institution of higher education to the purposes and functions for such information set forth in Federal or State education law, and allow access to the information in the statewide education data system only to those State or local employees or agents, and only on such terms, as may be necessary to fulfill those purposes and functions;

“(2) prohibit the disclosure of student-level information in the data system to any other person, agency, institution, or entity, except that States may allow the disclosures permitted under section 444 of the General Education Provisions Act (commonly referred to as the ‘Family Educational Rights and Privacy Act of 1974’) in accordance with the limitations set forth in this section and any additional limitations set forth in State law;

“(3) require any person, agency, institution, or entity to whom disclosure of information in the data system is authorized under section 444 of such Act to sign a data use agreement prior to disclosure, that—

“(A) prohibits the party from further disclosing the information;

“(B) prohibits the party from using the information for any purpose other than the purpose specified in the agreement; and

“(C) requires the party to destroy the information when the purpose for which the disclosure was made is accomplished;

“(4) if consistent with the purpose of the disclosure, remove personally identifying information and unique identifiers before disclosing student-level information in the data system;

“(5) in addition to meeting the accounting requirements under section 444 of such Act, maintain a record of the date of each disclosure of information in the data system, a detailed description of the information disclosed, and the name and address of the person, agency, institution, or entity to whom the disclosure was made, which accounting shall be made available on request to parents of any student whose information has been disclosed, or to the student if the student has reached the age of 18 or is enrolled in a postsecondary educational institution;

“(6) ensure that any disclosure of aggregate data in the data system is in a form that does not permit the identification of individual students, and that any unique identifiers in the data system are removed prior to disclosure of aggregate data;

“(7) maintain adequate security measures to ensure the confidentiality and integrity of the data system; and

“(8) ensure adequate enforcement of the requirements of this section.

“(b) Use of unique identifiers.—

“(1) GOVERNMENTAL USE OF UNIQUE IDENTIFIERS.—It shall be unlawful for any Federal agency, any employee of any Federal agency, any State or local agency in a State that receives funds under this Act, or any employee of a State or local agency in a State that receives funds under this Act, to use unique identifiers employed in a statewide education data system for any purpose other than as authorized by Federal or State education law, or to deny any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose the individual’s unique identifier.

“(2) REGULATIONS.—Not later than 1 year after the date of enactment of the Flexibility and Innovation in Education Act, the Secretary shall promulgate regulations governing the use of unique identifiers employed in statewide education data systems, with the goal of safeguarding individual privacy. The regulations may require States seeking grants under this part to have in place measures to limit the use of unique identifiers by nongovernmental parties to the extent practicable, consistent with the uses of the information authorized in Federal or State education law.

“(c) Formula grants for privacy protected data systems.—

“(1) GRANTS AUTHORIZED.—From amounts appropriated under paragraph (4), the Secretary is authorized to make grants, from allotments under paragraph (2), to States receiving grants under section 1121, for the purposes of carrying out the requirements of this section related to privacy protections and unique identifiers.

“(2) ALLOTMENT FORMULA.—The Secretary shall establish a formula for the allotment of grants under this subsection that ensures that each State receives an equitable share of the amount allotted based upon relevant State factors, including student population size.

“(3) DEFINITION OF STATE.—In this subsection the term ‘State’ means each of the several States of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

“(4) AUTHORIZATION OF APPROPRIATIONS.—From the amounts appropriated to and available for Program Administration within the Departmental Management account in the Department of Education for each of fiscal years 2011 through 2015, there are authorized to be appropriated to carry out this subsection $1,000,000 for each such fiscal year.”.

SEC. 6. Improvements to the peer review process.

Section 1111(e)(1) (20 U.S.C. 6311(e)(1)) is further amended—

(1) by striking subparagraph (B);

(2) by redesignating subparagraphs (C) through (F) as subparagraphs (F) through (I), respectively;

(3) by inserting after subparagraph (A) the following:

    “(B) develop, and update, a list of individuals the Secretary has determined to be eligible under subparagraph (C)(i) to be appointed to the peer review process under this subsection, which list shall include eligible individuals recommended by State educational agencies, local educational agencies, and professional educational associations;

    “(C) using the list described in subparagraph (B), appoint individuals to the peer review process, ensuring that—

    “(i) the individuals appointed to the peer review process are—

    “(I) representative of parents, teachers, State educational agencies, local educational agencies, and professional education associations; and

    “(II) skilled practitioners or education researchers with knowledge of fair, valid, and reliable assessment design, including individuals with expertise in 1 or more of the following:

    “(aa) developing educational standards;

    “(bb) developing valid and reliable assessments for all students, including alternative assessments for students with disabilities and English language learners;

    “(cc) creating valid accountability models;

    “(dd) accurately assessing the needs of low-performing schools; or

    “(ee) adequately measuring the other educational needs of students so that issues relating to the education of the whole child are addressed; and

    “(ii) each peer review panel used in the process contains—

    “(I) not less than 1 representative recommended for inclusion on the list described in subparagraph (B) by State educational agencies;

    “(II) not less than 1 representative recommended for the list by local educational agencies;

    “(III) not less than 1 representative recommended for the list by professional educational associations;

    “(IV) not less than 1 representative recommended for the list by the Secretary; and

    “(V) not less than 1 representative who works in a school;

    “(D) ensure that there is consistency from State to State with respect to all decisions reached by the peer review panels;

    “(E) ensure that States are given the opportunity to receive timely feedback from peer review teams, in person or via electronic communication, and directly interact with peer review panels on issues that need clarification during the peer review process;”;

(4) in subparagraph (H)(iii) (as redesignated by paragraph (2)), by striking “and” after the semicolon;

(5) in subparagraph (I) (as redesignated by paragraph (2)), by striking the period and inserting a semicolon; and

(6) by adding at the end the following:

    “(J) post all approval and denial decisions regarding the State plans and final State plans, State plan amendments, and waiver decisions for each State plan, on a publicly available website in an easily identifiable location, and provide written notification to States of all such decisions within 3 business days of such decisions; and

    “(K) direct the Inspector General of the Department to review the final determinations reached by the Secretary under this subsection for consistent decisionmaking through the peer review process across all States and report the findings to Congress once every 2 years.”.

SEC. 7. Disaggregation of graduation rates.

Section 1111(h)(1)(C)(vi) (20 U.S.C. 6311(h)(1)(C)) is amended by inserting before the semicolon the following: “, disaggregated by the student subgroups described in subsection (b)(2)(C)(v)(II).”.