John J. Mahlmann
Executive Director
National Association for Music Education
1806 Robert Fulton Drive
Reston, VA 20191

Dear Mr. Mahlmann:

This is in response to your September 30, 2003 letter concerning the paraprofessional education provisions of Title I of the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind (NCLB) Act. Specifically, you questioned the application of those provisions to artists who deliver instruction in public schools.

As indicated in my earlier letter, the question of whether an artist working in a school is a “teacher” or a “paraprofessional” and whether the artist must meet Title I qualification requirements can only be answered based on the specific circumstances of each artist’s individual situation. I identified several factors that a district would need to take into consideration to determine whether an artist is subject to the teacher or paraprofessional qualification requirements. One of those factors is whether the individual is an employee of the school district. In general, the question of whether an individual is considered an employee of a school district when that person’s salary is paid with a combination of private and public funds is a local determination. For Title I purposes, an individual is considered to be an employee of the school district and working in a program supported by Title I funds, when a school district hires the person to provide instruction or instructional support in a Title I targeted assistance school and the person’s salary is paid, in whole or in part, with Title I funds. An individual is considered to be an employee of the school district if the person is hired by the school district to provide instruction or instructional support in a Title I schoolwide program school, without regard to the source of funding for that person’s salary. This is because in a schoolwide program, Title I funds are used to upgrade the curriculum of the entire school–>all staff are considered to be Title I staff and all students are Title I students. Once a district makes a determination that an individual is a teacher of a core academic subject or is a paraprofessional consistent with the statute, guidance, and regulations, then the qualification and program requirements apply, as appropriate.

With regard to your second set of questions, Federal funds must be expended for the purposes and under the conditions specified in the law authorizing the funds. Similarly State and local funds must be spent in accordance with the authority that generated those funds.

As for the distinction between “instruction” and “enrichment” for the purposes of determining if Title I professional qualifications requirements might apply, the key is the

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content being provided. As you correctly point out, instructional activities can take place in a school that are not part of the ongoing instruction in core academic subjects. The following question in the new Improving Teacher Quality guidance may be useful to you in thinking about this issue:

C-21. How do the teacher quality requirements apply to individuals working in extended learning time programs?

If services offered outside of regular school hours in a Title I extended learning time program provide instruction in core academic subjects designed to help students meet State or local academic standards, the persons providing such core academic instruction must meet the highly qualified teacher requirements. In extended learning time programs (which can include summer school), the school’s regular teaching staff extends or continue the school’s instructional day using the same or similar curricula, and therefore they must be highly qualified. However, if the instructor is not an employee of the school district, the teacher quality requirements do not apply.

An extended learning time program that offers core academic instruction because an LEA has determined that particular students need additional time to learn to State standards can be distinguished from an after-school program offering academic enrichment, tutoring and homework assistance, including supplemental educational services under Section 1116 of No Child Left Behind. In the latter case, the highly qualified teacher (and paraprofessional requirements) do not apply. It is up to the LEA to draw the distinction between extended time and enrichment programs.

I hope this additional information is helpful to you.

Sincerely,
Ronald J. Tomalis
Acting Assistant Secretary
Office of Elementary and Secondary Education

Policy Letters to States

Mr. John J. Mahlmann
Executive Director
The National Association for Music Education
1806 Robert Fulton Drive
Reston, VA 20191

Dear Mr. Mahlmann:

This is in response to your letter seeking guidance on the paraprofessional education provisions of Title I of the Elementary and Secondary Education Act (ESEA) as amended by the No Child Left Behind (NCLB) Act, as they relate to artists who deliver instruction in public schools. Specifically, you requested guidance as to whether artists who deliver instruction in public schools need to meet paraprofessional qualification requirements and whether the treatment of artists as paraprofessionals applies to all artists who have instructional duties in programs supported by Federal funds, regardless of the source of those artists’ salaries.

The question of whether an artist working in a school is a teacher or a paraprofessional and, if so, whether the artist must meet qualification requirements can only be answered based on the specific circumstances of each artist’s individual situation. A local school district would need to make this determination consistent with the statute, regulations, and guidance.

For example, factors that determine whether an artist working in a school needs to meet teacher qualification requirements include (1) whether the artist is hired as the classroom teacher for a specific art course or is only to provide enrichment activities, (2) whether the artist is an employee of the district, and (3) whether the specific subject being taught is included in the State’s definition of “the arts” as a core academic subject. (States have the flexibility to define “the arts” for the purposes of determining if a particular art is considered a “core academic subject” under the statute in the State). Factors that determine whether such an artist might be a “paraprofessional” include (1) whether the individual is performing duties as described in Section 200.59 of the Title I regulations (www.ed.govhttps://www2.ed.gov/policy/elsec/guid/paraguidance.doc) , (2) whether the individual works in a program supported with Title I funds as defined in Section 200.58 of the regulations, and (3) whether the individual is an employee of the school district.

Certainly, an artist hired by a school district to be the “music” or “visual arts” teacher in a State which has defined music or the visual arts as core academic subjects must meet

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teacher qualification requirements. However, I suspect that in most cases where an artist is in a school solely to provide enrichment activities, he or she will be neither a teacher nor a paraprofessional.

I appreciate knowing of your organization’s support for requiring performing artists who deal directly with students to work under the “direct supervision” of a highly qualified teacher. As you know, school districts already have the authority to determine the conditions under which performing artists work without defining such individuals as paraprofessionals. Please be aware, however, that if a determination is made that a performing artist is a paraprofessional for Title I purposes, there are additional qualification standards that the individual must meet. He or she must have a secondary school diploma or its equivalent, and must (1) have completed at least two years of study at an institution of higher education, or (2) have obtained an associate’s or higher degree, or (3) have demonstrated—through a formal state or local assessment—knowledge of, and the ability to assist in instructing, as appropriate, reading/language arts, writing or mathematics or reading readiness, writing readiness or mathematics readiness.

We appreciate your interest in the No Child Left Behind Act.

Sincerely,
Ronald J. Tomalis
Acting Assistant Secretary
Office of Elementary and Secondary Education

Policy Letters to States