UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF ELEMENTARY AND SECONDARY EDUCATION

 

The Honorable Michael W. Kirst .  1 8 
President

California State Board of Education

1430 Street, Suite 5111

Sacramento, CA 95814

The Honorable Tom Torlakson
Superintendent of Public Instruction
California Department of Education
1430 Street

Sacramento, CA 95814

Dear President Kirst and Superintendent Torlakson:

I am writing to provide the ?nal determination of the US. Department of Education (the Department) in
response to the California Department of Education?s (CDE) request for a waiver under section 8401 of the
Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act
(ESSA), to implement its transition plan for administering new general and alternate science assessments.

On une 2, 2016, CDE requested this waiver so that it could transition to new general and alternate science
assessments aligned with the Next Generation Science Standards, which CDE adopted in 2013, without
testing students on California?s current science test while CDE pilots and ?eld tests its new assessments.
Speci?cally, under transition plan, CDE would pilot items for the new general science assessments in
school year 2016??2017 with all students in ?fth and eighth grades and high school, conduct a census ?eld
test with all students in those grades in 2017?2018, and conduct a full operational test in 2018?2019. With
respect to alternate science assessments aligned with alternate academic achievement standards for students
with the most signi?cant cognitive disabilities, CDE would pilot items for a new test for eligible students in
?fth and eighth grades and high school in school years 2016?2017 and 2017-2018, conduct a census field
test in 2018?2019, and administer a full operational alternate assessment in 2019?2020. While it is piloting
and field testing its new science assessments, CDE would not administer its existing, approved science
assessments. In addition, CDE would not report individual student or school-level achievement data to
parents, educators, or the public.

On September 30, 2016, I declined to approve waiver request because it did not meet the
requirements in section 8401 and (F) of the ESEA that a waiver advance student achievement and
maintain or improve transparency in reporting to parents and the public on student achievement and school
performance, including the achievement of student subgroups. Under section of the
ESEA, I noti?ed CDE of that determination, providing detailed reasons, in writing, for my determination,
and offered CDE an opportunity to revise and resubmit its waiver request within 60 days. On November 29,
2016, CDE resubmitted its request, providing additional information in support of its waiver. CDE,
however, did not alter its transition plan or timeline. 

On December 13, 2016, I concluded, despite additional rationale in support of its waiver request, that
it still did not warrant approval because it did not meet the statutory requirements to improve student
achievement and maintain or improve transparency in reporting to parents and the public. Further, the

 

waiver contained an un-waivable request as it relates to students with the most signi?cant cognitive
disabilities for whom there must be a fully operational alternate assessment in science for students with the
most signi?cant cognitive disabilities at the same time as the CDE administers an operational general science
assessment (section 612(a)(16)(A) of the Individuals with Disabilities Education Act Under
section of the ESEA, I offered CDE the opportunity to request a hearing to present
argument and any testimony in support of its waiver request.

On December 20, 2016, CDE requested a hearing but asked that it be conducted after January 2, 2017. The
Department conducted the hearing on January 6, 2017 via WebEx. At the hearing, Keric Ashley, Deputy
Superintendent of the District, School, and Innovation Branch of CDE, presented oral argument. CDE also
submitted a letter on January 6, 2017, that articulated the argument it made at the hearing.

I respect decision to upgrade its current science standards by adopting the Next Generation Seience
Standards. With that decision comes the task of developing new assessments and setting academic
achievement standards in science aligned with the new content standards. As with any assessment
development, I know that this work is not easy and CDE is fortunate to have a broad coalition of
stakeholders to support its efforts. I appreciate interest in ensuring that its new science assessments
are a tool for learning and that assessing students in science does not take unnecessary time away from
valuable instruction. I also understand arguments that having time to conduct a census ?eld test of a
new online assessment will afford the opportunity to work out glitches and likely presage a smooth
operational assessment.

Nevertheless, I remain deeply concerned about transition plan and timeline. pilot tests will
not measure the full depth and breadth of the State?s academic new content standards in science, because
each student will receive only a sample of assessment items during the pilot phase. Moreover, CDE will not
have set new academic achievement standards, so CDE will not be able to validly and reliably measure
student academic achievement on either the pilot or the ?eld tests. Further, during the years in which it
administers the pilot and ?eld tests, CDE will not have comparable individual student or school?level 
achievement results across districts in the State to report to the public. Finally, transition plan will
result in an additional year 2018-2019 before students with the most signi?cant cognitive disabilities
have a fully operational alternate assessment in science. 

I am therefore declining to approve waiver request based on the transition plan and timeline that are
currently before me because the request does not meet the requirements for a waiver un?der ESSA section
8401. Section 840l(b)(1)(C) and (F) require, respectively, that a waiver advance student achievement and
maintain or improve transparency in reporting to parents and the public on student achievement and school
performance, including the achievement of subgroups 'of students. Because CDE will not administer an
operational general science assessment in either SYs 2016?2017 or 2017?201 8 or an operational alternate
science assessment in SYs 2016?2017, 2017?2018, or 2018?2019, CDE will have no achievement data in
science that is comparable across schools and districts to report to educators, parents, or the public for
several years. The lack of an operational assessment measuring student achievement for all students against
the full depth and breadth of the State?s academic content standards in science and the lack of academic
achievement standards for two to three school years under transition plan will mean that CDE will
lack valid and reliable data about student achievement in science during school years 2016?2017 through
2018?2019. As a result, CDE will not be able to determine whether student achievement in science is
improving, consistent with section 8401(b)(1)(C), or be able to maintain or enhance the level of transparency
in reporting to parents and the public on student achievement in science for the duration of the waiver,
consistent with section 8401(b)(1)(F).

If CDE moves forward with its transition plan and timeline, CDE will be out of compliance with a number of
requirements of the ESEA, as amended by the No Child Left Behind Act of 2001 (NCLB), for SY 2016?
2017 and the ESEA, as amended by the ESSA, for SYs 2011?2018 and 2018?2019. Speci?cally, NCLB

 

sections 1111(b)(1)(A) and 1111(b)(3)(C)(ii) and require the State to establish student academic
achievement standards and implement high?quality, yearly student academic assessments in science that are
aligned with those standards to measure student achievement and to inform instruction. The same
requirements are found in ESSA sections 1111(b)(1)(A) and and Further, NCLB
sections 1111(b)(3)(C)(xii) and (xv) and 1111(h)(1)(C)(i) and require the State to provide individual
student reports to parents, teachers, and principals and to include the results of science assessments on State
and local report cards. These same requirements are continued in ESSA sections 1111(b)(2)(B)(x) and (xii)
and 1111(h)(1)(C)(ii) and In addition, because CDE will administer an operational general science
test by SY 2018?2019 but will not administer an operational alternate assessment until SY 2019?2020, CDE
will violate the requirement in section 612(a)(16)(A) of the Individuals with Disabilities Education Act
(IDEA) that all students with disabilities be included in all general State and districtwide assessment
programs, including assessments described in section 1111 of the ESEA, with appropriate accommodations
and alternate assessments where necessary and as indicated in their respective individualized education
programs (IEPs). IDEA does not allow that this provision be waived.

As noted above, my decision is based on current transition plan and timeline that are before me. At
the hearing, Deputy Superintendent Ashley expressed interest in a one?year waiver for the 2016?2017 school
year while it pilots its new assessment items. In 2017?2018, be indicated that CDE would be willing to
report the raw scores from its census field test with an explanation of how to interpret these schools and what
they mean for student progress and classroom instruction but not reporting on academic achievement
standards. Deputy Superintendent Ashley also indicated a willingness to examine how CDE can meet the
requirements of the IDEA to administer an operational alternate assessment in science for students with the
most signi?cant cognitive disabilities at the same time it administers an operational general science
assessment. My decision does not address these offers because they are not formally before me as part of
waiver request. As always, the Department is willing to review any new waiver request from a State.

If you have questions, please do not hesitate to contact Tanesha Hembry of my staff at:
OSS.California@ed.gov or Susan Murray in the Of?ce of Special Education Programs at:
Susan.Murrav@ed.gov.

Sincerely,

QAMM

Ann Whalen

Senior Advisor to the Secretary

Delegated the Duties of Assistant Secretary for
Elementary and Secondary Education

cc: Keric Ashley, Deputy Superintendent
Kristin Wright, Director of Special Education Division