The 1st meeting of the Education Assessment and Accountability Review Subcommittee was held on Thursday, March 18, 2004, at 8:30 AM, in Room 129 of the Capitol Annex. Senator David L. Williams, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator David L. Williams, Co-Chair; Representative Harry Moberly, Co-Chair; Senators Lindy Casebier, Dan Kelly, and Ed Worley; Representatives Mary Lou Marzian, and Frank Rasche.
Guests: Mike Carr and Wayne Young, Kentucky Association of School Administrators; Cindy Heine, Prichard Committee.
LRC Staff: Sandy Deaton, Audrey Carr, Jonathan Lowe, Janet Stevens, Kelley McQuerry, and Emily Cantrell.
Senator Casebier moved for approval of the minutes of the November 24, 2003, meeting and Representative Rasche seconded the motion. The motion passed by voice vote.
Senator Williams said the amendments to the administrative regulations are necessary to implement the federal No Child Left Behind Act (NCLB). The subcommittee has been informed of the amendments during their development, but there have been some changes since the subcommittee last saw them. He asked Mr. Kevin Noland, Legal Counsel, Kentucky Department of Education (KDE) to explain the amendments, and introduced Commissioner of Education Gene Wilhoit and Ms. Helen Mountjoy, chair, Kentucky Board of Education (KBE) to answer any questions.
Mr. Noland said that over the past few years the subcommittee has reviewed and given advice to the KBE on the implementation of NCLB. He said there also has been input from several local groups that have helped with improving the regulations.
Mr. Noland said that there are differences in the federal and the Kentucky assessment and accountability requirements. For example, the federal law only counts math and reading and there is a uniform base line. In Kentucky, there is an individual baseline for each school and Kentucky has biennial accountability versus the federal annual accountability. He said that the federal system is a pass-fail system. A school only gets credit for students who reach proficiency and beyond and does not get credit for a student going from novice to apprentice.
Mr. Noland said that the subpopulation goals are another big difference in NCLB. He said that the subpopulation accountability for students with disabilities, minority students, low soci-economic status and Limited English Proficiency (LEP) students caused some schools not to meet goals last fall.
Mr. Noland said the goal has been to get the regulations into effect prior to April 19, 2004, which is the first test day for the statewide testing.
Mr. Noland said the first regulation, 703 KAR 5:001, relates to the assessment and accountability definitions. He said there are two issues that are still being disputed. One is the definition of full academic year under federal law, which is the length of time a student has been in school before the school is held accountable for the student. He said the regulation states that a school is accountable for a student who is enrolled in the school for any one hundred (100) instructional days from the first instructional day of the school year to the first day of the testing window. The other issue is the N-Count definition, which is the minimum number of students for calculating participation rates. This means that a school or district has at least ten students in a subpopulation and in each grade in which NCLB assessments are administered and at least sixty students in the subpopulation in these grades combined or the subpopulation constitutes at least fifteen percent of the students in these grades combined.
Senator Williams asked Dr. Leon Mooneyhan, Chair, Local Superintendents Advisory Council (LSAC) to join the others at the table to comment on the regulations since he had requested the opportunity to testify. He asked Dr. Mooneyhan if he had any additional comments or concerns relating to 703 KAR 5:001. Dr. Mooneyhan said that there are concerns on the definitions of full academic year. He said that LSAC has recommended that students be included in this definition that were enrolled on the sixth day of the school year to the beginning of the testing window. He said the definition the board has approved is any 100 days. He said that under the KDE definition a student could drop in and out of the school, but as long they were in school 100 days they would be included. He said that LSAC does not think this meets the common sense definition as to what this should be.
Ms. Helen Mountjoy responded by saying that KBE's decision on this matter was taken after great consideration and the 100 days is, in fact, a relaxation of the standard that has been in place for the last twelve years. She said that the 100-day participation would apply both to Kentucky's accountability system and to the NCLB requirements as per the advice of this subcommittee.
Ms. Mountjoy said that LSAC explained to the KBE that this was necessary because of the inclusion of students to whom English is a second language. She said with the recent relaxation of some of the guidelines from the United States Department of Education (USDE) pertaining to Limited English Proficiency (LEP) students, this concern should be ameliorated.
Senator Williams asked Dr. Mooneyhan if he was referring to students that leave enrollment or the actual number of days present. Dr. Mooneyhan said he was referring to the students that leave and go to a different school district and then come back to the school.
Senator Williams asked what the procedure is to take a student off the roll. Dr. Mooneyhan said that a student is taken off the roll when notification is received from another school that the student is enrolled there. Senator Williams asked why you could not take a student off the roll when they are not there. Dr. Mooneyhan said that is against policy. Senator Williams asked if there was a law or regulation stating that you can not remove that student. Dr. Mooneyhan said that he was not aware of anything to allow them to do that and as a matter of practice it is not done.
Senator Kelly asked how many instructional days there are from the beginning of the academic year until the beginning of the administration of the test. Ms. Mountjoy said that there are 175 days in the entire school year. She said there would be 130 to 140 days depending on which part of the testing window the school chooses to use.
In response to a question from Senator Kelly, Commissioner Wilhoit said that LSAC is asking that in order for a student to be counted in that district, they should be present on the sixth day of enrollment all the way through the testing program. Dr. Mooneyhan said that LSAC is not suggesting that there not be accountability at the district level, but it is not fair for the accountability to fall at the school level.
Representative Moberly asked Dr. Mooneyhan if LSAC wants the student to be in school from the beginning of the school year up to the test time. Dr. Mooneyhan said that LSAC wants the definition to be the sixth day of school through the testing period. He said that the reason the sixth day was selected is that some students do not always show up on the first day.
Representative Moberly asked if LSAC would be more comfortable if the definition stated that students had to be in school 100 consecutive days before the test. He said this would be further into the year than the sixth day. Dr. Mooneyhan said that sounds more in line with what LSAC is recommending. Representative Moberly asked Ms. Mountjoy about the problem of the transient student that comes in and out of the district several times a year. She said that in some schools the number of students that are enrolled in a school is essentially the same at the beginning and end of the year, but 70 to 80 percent of those students have either been in and out of that school or are different students from the ones that were enrolled at the beginning of the year.
Senator Williams asked Ms. Mountjoy if there are schools that have 70 to 80 percent different populations within the year and asked where these schools are located. Ms. Mountjoy said that these schools are primarily in urban areas, but not always. She said that in rural areas the students might move from one side of the district to the other.
Senator Kelly said that he could not imagine that type of turbulence not being taken into account into any type of accountability index. Ms. Mountjoy said that one of the things that was started in 1990, which is still consistent, is that a school is held accountable if a student was present in a school on the first day of testing, except for the writing portfolio, which has the 100 day enrollment policy.
Senator Williams asked Dr. Mooneyhan how many days are before the testing window. Dr. Mooneyhan said that approximately 135 days but it will vary from district to district. Senator Williams asked Dr. Mooneyhan if he thought it would be reasonable for the student to be in the school 100 out of the 130 days. Dr. Mooneyhan said that something along that line would be considered. He said it needs to fit the individual needs of districts because calendars vary. He said that if a school is going to be accountable then the students need to be there most every one of the days in the school year.
Senator Kelly said that the superintendent's testimony is persuasive and that there are some questions concerning the common sense approach to this. He said that the testimony from KBE is that they have thought long and hard on this issue and have made numerous changes. Senator Williams said the regulations were for discussion and would not be voted upon.
Mr. Kevin Noland said that 703 KAR 5:020 deals with determining school accountability and implements several of the definitions that are in 703 KAR 5:001. Page one deals with adding math and reading testing in grades three through eight. Page ten deals with the 99 percent confidence intervals, that assures that whatever judgement or score that is put on a school's accountability system is accurate. He said the 99 percent gives a range to go by if a goal is a certain range and there is a plus or a minus within there. He said this helps with the reliability of the conclusion. He said that the other thing that needs to be pointed out is the annual measurable objectives under NCLB. He said that the only federal law requirement is that intervals have to be equal and at 100.
Mr. Noland said that 703 KAR 5:070 deals with regulations providing accommodations to students with disabilities and limited English proficient students. He said that this is an amendment that adds language that takes advantage of flexibility recently announced by the USDE for including students LEP. Ms. Mountjoy added that KBE would like to take full advantage of the flexibility that has recently been offered by USDE. Dr. Mooneyhan said that LSAC agrees with taking full advantage of the flexibility as well.
Senator Williams asked what other changes LSAC would want to make. Dr. Mooneyhan said that LSAC would like to see the full school year defined and would want to ensure that testing was available in other languages. He said that the test should take into consideration that different languages have different regions and symbols, particularly in math.
Senator Williams asked if this is a national problem. Mr. Noland said that it is a national problem and that he has assured Dr. Mooneyhan that the regulation allows that whatever instructional accommodation has been given to a student during the school year can also be given while taking the test. He said that if the student does not understand the symbols in math, a person could cue them on the things that they do not understand.
Senator Williams asked if there are people in each of the school districts who understand what symbols in math the students do and do not understand. Mr. Noland said that it would be the teacher that has worked with that student throughout the year.
Commissioner Wilhoit said there are approximately eighty languages spoken in the state and it is impractical to translate in all those languages. He said KDE is implementing an LEP program as best it can.
Senator Kelly asked why reading is not tested in LEP, but math is tested. Mr. Noland said that the rationale of USDE is that reading involves English language skills and math does not.
Dr. Mooneyhan said that LSAC thought that the KBE was correct in allowing consideration for portfolios for English as a second language (ESL) students. He said that LSAC thinks strong consideration should be given to open response questions since it is a communication issue. He said that there are ESL students that might know the amendment but could get poor scores because they can not write the open response in a way that is going to get them to proficient or distinguished, even though in some cases these students may be gifted. Ms. Mountjoy said that all though KBE might agree with that, federal regulations require that students take the same test and that the test that counts for NCLB be the same that is given as the state assessment. She said that since open response questions are part of the state test there is no opportunity allowed under USDE regulations for making a particular type of test different for these students. She said the only different type that is allowed is for one percent of special education students who have been identified as those with the most profound learning difficulties.
Senator Williams asked if there is a variance because of the difference between Kentucky's test in open response versus other states. Mr. Noland said that part of the federal requirement is that the test results be back before the next school year. Because open response and on demand tests take longer to grade, the KDE asked for permission to grade math and reading early, and then the other portions of the test be graded by the time school starts. He said that KDE was denied that request.
Representative Moberly asked if these students are receiving assistance under the continuous assessment process. Dr. Mooneyhan said that the students were receiving assistance, but not at the level they would like to provide. Representative Moberly said that if those services were provided throughout the year, then they could be provided on the test as well. He said it seems a better solution would be to provide proper accommodations to be used on the test, rather than changing the test or to have an alternative test. Dr. Mooneyhan said that he does not disagree with this if there were adequate resources, but by not having those resources provided, other approaches need to be reviewed. Representative Moberly said that money was put into the House of Representatives' version of the budget for LEP.
Mr. Noland said that 703 KAR 1:120 deals with assistance for schools and guidelines for scholastic audits. He said that the only change to this regulation was to remove all the definitions.
Mr. Noland said that 703 KAR 1:130 deals with school district accountability and implements the requirements of NCLB by having district level accountability that consists of an aggregate of scores of the schools in the district.
Mr. Noland said that 703 KAR 5:160 deals with administration procedures for testing and nothing has changed in what has been done in the past other than having it put in regulation form.
Senator Williams asked Dr. Mooneyhan what other issues he wanted to address with the committee. Dr. Mooneyhan said that LSAC recommends that grade level be the definition of proficient. Ms. Mountjoy responded by saying that there is not a definition of grade level performance in Kentucky. She said there are standards of performance that have been set through an elaborate process using educators, members of the general public, and a long period of time with the National Technical Advisory Panel on Assessment and Accountability, as well as other groups to establish performance levels. She said that KBE thought it would be confusing if there was one definition for proficiency on the state accountability system and a separate definition for NCLB. She said that schools are already moving in the direction of proficiency at the high standard that has been accepted in Kentucky.
Commissioner Wilhoit said that there would have to be a determination of what barometer would be used and at this point KDE does not have that barometer. He said that another concern is not pulling back from the aggressive goals that we have had in the past and this might send a message that we are lowering standards.
Dr. Mooneyhan said that LSAC believes in high standards and grade level is the standard in most states. If Kentucky is going to be compared nationally under NCLB, it will be better and fair to use grade level. He said that he did not see KBE or KDE looking for ways to use grade level.
Dr. Mooneyhan said that the final issue is the size of the subgroup and the N-count. He said that while KBE has made some recommendations in terms of the twenty per grade level in a testing grade, he did not see in the regulation on the 15 percent where it said, whichever is greater. Ms. Mountjoy said that is correct. Dr. Mooneyhan asked if it is whichever is greater. Ms. Mountjoy said that it is not.
Dr. Mooneyhan said that while the regulation is a change, it is not a change of substance and it is clearly unfair to the large schools. He said that it makes a much greater chance of a large school not making AYP.
Ms. Mountjoy said that the original program had been altered by doubling the number of students that would have to be in the school over the original proposal. She said that one of the questions that was always considered was whether any child's education would be shortchanged as a result of the decision that was made. She said that a small number of students might affect the determination of the progress of a school. She said that the first responsibility of KBE is to each individual child and making sure each one counts in an appropriate and reasonable way. She said that KBE thinks they have made an accommodation, which has doubled the number of students from the original proposal, on the basis from what has been heard through the public hearing process.
Commissioner Wilhoit said that he agrees that there is inequity in large schools, but he did characterize inequity as one of diversity and not of size. He said there are greater numbers of categories for a diverse school to not meet under NCLB and that is part of the system and it would not assist in terms of N-changes.
Senator Williams thanked everyone on the panel for coming.
With no further business the meeting adjourned at 9:10 a.m.