Request to Amend Accountability Plan – Colorado – NCLB Policy Letters to States

June 9, 2009

The Honorable Dwight D. Jones
Commissioner of Education
Colorado Department of Education
201 East Colfax Avenue, Room 500
Denver, Colorado 80203

Dear Commissioner Jones:

On behalf of Secretary Duncan, I want to thank you for your hard work in implementing the Elementary and Secondary Education Act of 1965 (ESEA). As you may know, the Secretary is traveling the country and listening to representatives from states and school districts, as well as other stakeholders, to talk about the ways in which the ESEA can be improved. These conversations will inform the next reauthorization of the statute. In the meantime, we will push towards our reform goals under the authority of, and in accordance with, the existing statute and regulations.

I am writing in response to Colorado’s request to amend its state accountability plan under Title I of the ESEA. Following discussions between the Department and your staff, Colorado made certain changes to its accountability plan, which are now included in the amended state accountability plan that Colorado submitted to the Department on May 29, 2009. I am pleased to approve Colorado’s amended plan, which we will post on the Department’s website. A summary of Colorado’s requested amendments is enclosed with this letter. As you know, any further requests to amend Colorado’s accountability plan must be submitted to the Department for review and approval as required by section 1111(f)(2) of Title I of the ESEA.

Please also be aware that approval of Colorado’s accountability plan for Title I, including the amendments approved herein, does not indicate that the plan complies with Federal civil rights requirements, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and requirements under the Individuals with Disabilities Education Act.

I am confident that Colorado will continue to advance its efforts to hold schools and school districts accountable for the achievement of all students. If you need any additional assistance to implement the standards, assessment, and accountability provisions of the ESEA, please do not hesitate to contact or of my staff.


Joseph C. Conaty


cc: Governor Bill Ritter
William Windler
Patrick Chapman
Alyssa Pearson

Amendments to Colorado’s Accountability Plan

Amendments to Colorado’s Accountability Plan

The following is a summary of Colorado’s amendment requests. Please refer to the Department’s website www.ed.gov for Colorado’s complete accountability plan.

Acceptable amendments

The following amendments are aligned with the statute and regulations.

Safe Harbor calculations (Element 3.2)

Revision: As was approved for 2006–07 and 2007–08, Colorado will add, for 2008–09, an additional safe harbor measure that uses a longitudinal model to compare the same students’ scores from the prior year to the current year. The longitudinal model allows Colorado to track achievement as a student progresses through a school system. Through the longitudinal safe harbor, any district, school, or student subgroup that has at least a 10 percent decrease in the percentage of matched non-proficient scores in the current year compared to the previous year, based on a comparison of individual student assessment results in the current and previous years, and meets the requirements in section 1111(b)(2)(I) of the Elementary and Secondary Education Act of 1965 (ESEA) regarding progress on the other academic indicator and participation, will make adequate yearly progress (AYP). Colorado will include this calculation for any district, school, or subgroup that does not meet the annual measurable objective or the traditional safe harbor, provided that the match rate for the group of students is 95 percent or higher. Colorado will not apply a confidence interval to this application, nor will Colorado apply this additional measure of safe harbor to K-3 schools.

Graduation rate (Element 7.1)

Revision: Colorado will delay its previously approved change to begin implementing a longitudinal cohort graduation rate similar to the definition approved by the National Governors Association. Instead of making this change, beginning with the graduating class of 2010, Colorado will use a longitudinal cohort graduation rate that is consistent with the Department’s regulations (34 C.F.R. § 200.19(b)), as amended in October 2008. In the interim, Colorado will use a graduation rate that includes students who receive diplomas within the standard number of years as a percentage of those who were in membership and could have graduated over a four-year period from grades 9-12. Dropouts or completers are not counted as graduates and there must be documentation that transfer students enrolled in another district in order for those students to not be counted as dropouts. The graduation rate target is 59.5 percent.

Please note that Colorado’s graduation rate target is approved only for use in making AYP determinations based on the results of assessments administered during the 2008–09 school year. In accordance with 34 C.F.R. § 200.19(b)(6)(ii), Colorado must submit for peer review and Department approval its graduation rate goal and targets for 2009-10 and beyond.

Unacceptable amendments

The following amendments are not aligned with the statute and regulations and may not be included in Colorado’s amended accountability plan.

Including students with disabilities in AYP determinations (Element 5.3)

The Department cannot approve Colorado’s request to use the transition flexibility authorized in 34 C.F.R. § 200.20(g) for calculating AYP for the students with disabilities subgroup in the 2008–09 school year. As provided in 34 C.F.R. § 200.20(g) and the December 5, 2008, letter to Chief State School Officers (refer to: www.ed.gov, only states that are moving expeditiously to adopt and administer alternate assessments based on modified academic achievement standards are eligible for this flexibility. Colorado’s request noted that it has decided not to develop an alternate assessment based on modified academic achievement standards. As a result, Colorado is not eligible to use the transition flexibility.

Including limited English proficient (LEP) students in AYP determinations (Element 5.4)

The Department cannot approve Colorado’s request to allow a district or school to appeal its AYP determination based on the scores on the reading/language arts assessment of LEP students who have been in the United States for less than three years if the school or district has made its Title III annual measurable achievement objective (AMAO) 1 [progress toward English proficiency] and 2 [attainment of English proficiency].

We note that section 1116(b)(2)(B) of the ESEA provides that, “if the principal of a school proposed for identification believes, or a majority of the parents of the students enrolled in such school believe, that the proposed identification is in error for statistical or other substantive reasons, the principal may provide supporting evidence to the local educational agency, which shall consider that evidence before making a final determination.” Overturning a school’s or district’s AYP determination based on the scores of LEP students who have been in the United States for less than three years, however, does not constitute “statistical or other substantive reasons.” To the contrary, it conflicts directly with other provisions of the ESEA. Notably, as required in section 1111(b)(2)(C)(i) of the ESEA, AYP must be defined by a state in a manner that applies the same high standards of academic achievement to all public elementary and secondary school students in the state. “All public…school students” includes LEP students who have been in the United States for less than three years (with the limited exception of “recently arrived” LEP students, as authorized by 34 C.F.R. § 200.6(b)(4)). Moreover, under section 1111(b)(2)(C)(v)(II), a state must separately measure the achievement of specific subgroups, including LEP students. Allowing Colorado to use the appeal process to exclude many, if not all, LEP students from AYP determinations simply because they have not been in the United States for at least three years would effectively override the explicit statutory requirements that LEP students be included in AYP determinations and that schools be held accountable for their academic achievement.

Decision Letters on State Accountability Plans

Request to Amend Accountability Plan - Colorado - NCLB Policy Letters to States