Representative RaeAnn G. Kelsch, Chairman,called the meeting to order at 9:00 a.m.

Members present: Representatives RaeAnn G.Kelsch, Bob Hunskor, Lisa Meier, David Monson,Margaret Sitte, Clark Williams; Senators Dwight Cook,Layton Freborg, Gary A. Lee, Ryan M. Taylor, RichWardner

Others present: See Appendix AIt was moved by Representative Meier,

seconded by Senator Lee, and carried on a voicevote that the minutes of the previous meeting beapproved as distributed.

Chairman Kelsch welcomed members of theEducation Standards and Practices Board as well asRepresentative Rick Berg, House Majority Leader,and Representative Lois Delmore, Legislative Councilmember.

At the request of Chairman Kelsch, a panelconsisting of Mr. Doug Johnson, Assistant ExecutiveDirector, North Dakota Council of Educational Lead-ers; Mr. Jon Martinson, Executive Director, NorthDakota School Boards Association; Ms. Bev Nielson,Assistant to the Executive Director, North DakotaSchool Boards Association; Mr. Joseph A. Westby,Executive Director, North Dakota Education Associa-tion, and Ms. Gloria Lokken, President, North DakotaEducation Association, presented testimony regardingthe No Child Left Behind (NCLB) Act.

Mr. Johnson distributed a document entitled NorthDakota Education Coalition NCLB Accountability PlanRevision Requests, attached as Appendix B.

Mr. Johnson said the North Dakota EducationCoalition (coalition) has been meeting on a regularbasis since December 2003. He said the coalitionappreciates the committee's willingness to monitor theimplementation of the NCLB Act and to listen to theconcerns of the coalition. He said the coalitionsupports holding schools accountable for studentachievement. He said members of the organizationunderstand the importance of the NCLB Act in thelearning process. He said public schools continue todemonstrate progress even when the rules of thegame are difficult to understand and even when theyare a moving target because midcourse changes aremade. However, he said, the coalition's concernswith the NCLB Act's accountability system have notdisappeared. He said the technical and complicated

scorekeeping system does not support the goals ofuniversal high achievement. He said relatedconcerns expressed by local leaders and educatorsare increasingly aligned with parents and the generalpublic.

Mr. Johnson said the NCLB Act is a working blue-print. He said major problems must be corrected sothat we can successfully move every child to highlevels of achievement. He said we need fair andaccurate systems that will help diagnose the reasonswhy students fall behind. He said the public wantsmore than labels and penalties for its schools. Hesaid recent polling data shows that the public wantsits schools to develop good citizens and provide itschildren with the tools that will be needed to succeedin life.

Mr. Johnson said research for the coalition'srecommended changes to the state's accountabilityplan was conducted by the executive directors fromeach of the represented groups. He said thisresearch included interviews with members from eachorganization and its board, reviews of other states'accountability plans, as well as discussions withnational groups that represent the coalition'smembers. He said the coalition used as its guidelinethe recommendations that were made by the WesternStates Benchmarking Consortium's position paperentitled "No Child Left Behind" Applying Tests ofCommon Sense. He said the paper states that theNCLB Act's accountability strategy must be modifiedto create a much more appropriate and workableapproach to accountability. He said the recommenda-tions approve of adequate yearly progress as the coreconcept of accountability but significantly change thecurrent provisions to be consistent with and suppor-tive of continuous strategy versus the test snapshotprovisions. He said it also requires cohort analysisand reporting as its core component foraccountability. He said it focuses the highest priorityof accountability on measuring continuous growth tofacilitate personalized instruction, such as assessinglearning needs, diagnosing, prescribing, intervening,verifying the progress, certifying the progress, andreassessing in a continuous cycle. He said it alsoprovides support to provide teacher skills and ongoinguse of the data for personalized instruction while stillmeeting the public's right to know through the public

NORTH DAKOTA LEGISLATIVE COUNCIL

Minutes of the

NO CHILD LEFT BEHIND COMMITTEE

Thursday and Friday, September 9-10, 2004Roughrider Room, State Capitol

Bismarck, North Dakota

recording of progress. He said it uses multiple meas-ures to determine student growth in more valid waysand supports rather than punishes struggling schoolsby rewarding them for demonstrating continuousgrowth in cohort data and expands opportunities andresources to identify evidence-based best practices inimproving learning for each student. He said it alsouses this information to provide helpful peer supportfor struggling schools.

Mr. Johnson said the coalition's recommendationswill begin to challenge some of the problems associ-ated with the NCLB Act's accountability strategy.

Mr. Johnson said the coalition's research of otherstates' accountability plans shows that North Dakotahas in many situations higher standards than manyother areas. He said while the coalition is not againsthaving higher standards, it does believe there needsto be a level playing field on which our schools'progress can be compared against other schools inthis state and outside this state.

Mr. Johnson said the coalition asks only that thecommittee consider its suggestions and work with thecoalition and the Department of Public Instruction(DPI) to see if a consensus can be reached onchanges that need to be made to the state account-ability plan.

PROPOSED ESTABLISHMENT OF ANADMINISTRATIVE NO CHILD LEFT

BEHIND COMMITTEEWith the permission of Chairman Kelsch,

Ms. Nielson said the first of the coalition's recommen-dations is that an administrative NCLB committee beestablished. She said this committee would provideinput to the Superintendent of Public Instruction andto appropriate legislative committees, monitorprogress, and facilitate changes to the state'saccountability plan. She said the makeup of thecommittee would be two representatives from theNorth Dakota Council of Educational Leaders, tworepresentatives from the North Dakota EducationAssociation, two representatives from the NorthDakota School Boards Association, two representa-tives from DPI, six legislators, and a member of theGovernor's office. She said the primary functions ofthis committee would be to review the state's account-ability plan on an ongoing basis and assess howthings are going, review what other states are doing,review what provisions they have had successfullywaived, and make recommendations for legislation toDPI. She said DPI is the only entity that can presentfor consideration amendments to the state's account-ability plan.

Ms. Nielson said it would be the preference of thecoalition that the administrative NCLB committee bechaired by a legislator and that it be independent ofDPI. She said DPI advisory committee consists ofseveral advisory groups whose members areappointed by DPI and who work in DPI in certain

areas. She said these groups do their job and wouldbe good resources when called upon by the coalition'sproposed administrative NCLB committee. She said itis the coalition's preference that the administrativecommittee be made up primarily of the policymakers,the practitioners, the legislators, and a representativeof the Governor.

In response to a question from RepresentativeKelsch, Ms. Nielson said the state's accountabilityplan could be amended to eliminate DPI advisorycommittee or that committee could meet if it wants.However, she said, the coalition believes that DPIadvisory committee does not meet the legislators'needs. She said DPI advisory committee is too large,has too many people who are already on other advi-sory committees, and has too few legislators. Shesaid DPI advisory committee consists of 18 memberswho are either DPI staff or DPI appointees and sixother people. She said that type of committee wouldnot reach the results that the coalition wants. Shesaid it may be a helpful committee to somebody butnot to the coalition. She said DPI advisory committeecould either be amended out of the state's plan or itcould be kept and run separately from the proposedsmaller legislative policymaking group that wouldreview the state's accountability plan on an ongoingbasis independent of DPI. She said DPI wouldcertainly sit on the coalition's administrativecommittee and be a resource, but that committeewould not be one for which DPI appoints themembers, sets the agenda, or serves as thechairman. She said DPI has plenty of committeesalready.

Ms. Nielson said there is some precedent for thesetypes of committees. She said the state AdvisoryCommission on Intergovernmental Relations is anexample of one such committee. She said it ischaired by a legislator. She said that commission canintroduce legislative bills. She said that group is acommission rather than an interim committee. Shesaid the Information Technology Committee hasagency staff sitting on it. She said that committeemeets year round. She said in the past there existedthe Quality Schools Committee which had noauthority. She said the Quality Schools Committeedid come up with some great ideas that never wentanywhere. She said that committee was chaired bythe Governor's office and had legislators involved.

In response to a question from Senator Wardner,Ms. Nielson said the coalition would be amenable tochoosing members by whatever system would work.She said the organizations represented on the coali-tion's administrative committee would represent theirpeople and the Legislative Council would presumablyselect its representatives. She said the committeecould be chaired by a legislator or by the LieutenantGovernor. She said the coalition is willing to workwith either branch. She said the coalition believesthat because the Legislative Assembly was left out of

No Child Left Behind 2 September 9-10, 2004

the state's accountability plan development process,the Legislative Assembly should this time have someconnection to the process.

SPECIAL EDUCATION AND ENGLISHLANGUAGE LEARNERS

Mr. Johnson said the second recommendation ofthe coalition is that the special education subgroupsbe redefined. He said we need to use the instruc-tional level identified in a student's individualizededucation program (IEP) for assessments of thosestudents who are mentally handicapped, severelymentally handicapped, trainably mentally handi-capped, and for those students who have other healthimpairments identified by the IEP team. He said thecoalition recommends using a student's IEP for theassessment process rather than using an assessmentfor significantly impaired students in the listedcategories.

Mr. Johnson said the coalition believes that theIEP team should be allowed to identify other specialeducation categories for exemption on a case-by-case basis. He said there are going to be othersignificant disabilities such as autism that could fallinto that category.

Mr. Johnson said the state's accountability planuses the 1 percent rule for alternative assessments.He said he believes that the rule should be changedto 5 percent. He said that would give this state abetter parameter for meeting the needs of studentswho do not fall into the category or who go over the 1percent that is currently in law. He said Texas hasasked the United States Department of Education forpermission to go to 7 percent. He said he does notknow if the request was granted.

In response to a question from RepresentativeDelmore, Mr. Johnson said counterparts with whomhe has visited indicate that they are looking at ways tomodify their state accountability plans. He said hedoes not know if any states other than Texas haveconsidered a percentage change for special educa-tion students.

In response to a question from RepresentativeKelsch, Mr. Johnson said he is not certain whetherthe Texas request included special education andEnglish language learner (ELL) students.

In response to a question from RepresentativeSitte, Mr. Johnson said usually 9 to 10 percent ofstudents are on IEPs.

Representative Sitte said in some communitiesmore than 5 percent of a student body might be ELLstudents.

Mr. Johnson said he does not believe that ELLstudents are qualified for special education servicesunless they have specific handicapping conditions.

BINOMIAL DISTRIBUTION FORMULAMr. Johnson said the coalition would like to drop

the binomial distribution formula which is being usedby DPI to determine the adequate yearly progress ofschools that have small student populations. He saidthe state's accountability plan should instead raise therequired "n" on subgroups to be comparable to otherstates in our area. He said Nebraska requires at least30 students for regular education and 45 students forspecial education at each grade level for purposes ofadequate yearly progress assessments. He said allof the states surrounding us have significantly higher"n"s than North Dakota does. He said the coalitiondoes not believe that we are equitably comparing ourstudents in small rural districts to those in otherstates. He said our formula might indicate that wehave a lot of small schools that are not makingadequate yearly progress compared to other stateswith different formulas.

In response to a question from RepresentativeKelsch, Mr. Johnson said he guesses that there areabout 150 schools that would likely be affected by thisproposal. He said if you set the "n" level at45 students for special education, you would impactvirtually every school in the state except the largestschools that have populations of more than 500 to600.

SUBGROUP IDENTIFICATION Mr. Johnson said the coalition proposes that ELL

and special education students be eliminated assubgroups. He said the inherent language and cogni-tive barriers found with such students create uniqueproblems in assessing academic growth. He said,therefore, both groups should be eliminated asadequate yearly progress subgroups. He said themeasurements of students in both of these groupsshould be made using the students' IEPs and shouldbe based on the students' growth over time. He saidthe subgroups are required by the NCLB Act.However, he said, the coalition believes that a planshould be submitted which challenges that provisionbecause those students' ability levels are not beingaccurately tested. He said the coalition also believesthat if the state reduced the "n," it would reduce thenumber of students who would be in that field formaking adequate yearly progress. He said if a schoolor school district would get to the point of determiningwhether their special education subgroup madeadequate yearly progress, there just would not beenough students in the group to determine adequateyearly progress and so the school or school districtwould be automatically exempt from meeting thatrequirement.

Representative Delmore said North Dakota is notthe only state struggling with this issue. She saidthere are many urban schools in particular that arehaving this problem. She said this is a unique idea

No Child Left Behind 3 September 9-10, 2004

and she sees the value of it, but she still wonders ifothers are looking at it.

In response to a question from RepresentativeDelmore, Mr. Johnson said he believes that otherstates have raised their "n" rather than specificallychallenging the inclusion of subgroups. He said itnever hurts to ask. He said he does not expect thatthis request will be granted.

Ms. Nielson said some states have asked forthings and they have not yet gotten answers. Shesaid states are beginning to look at what will and willnot work. She said if more and more states make thesame type of requests, the United States Departmentof Education and Congress will be more amenable toconsidering the changes in the future.

Representative Delmore said almost every schoolthat has been reported as failing has had that desig-nation because of problems with their subgroups.She said she certainly does not feel that other stateshave to request something first.

Mr. Johnson said there were flexibility rules offeredby the United States Department of Education andDPI asked for an extension so that those studentswho were ELL would not have to be assessed or havetheir tests counted until two years after completing theprogram. He said the problem is that these studentsare still going to perform poorly on the tests, particu-larly in the areas of English language and reading.He said they will not score well and will as a resultbring down a school's or a school district's adequateyearly progress score. He said a later recommenda-tion indicates that such students should be measuredbased on cohort and individual growth to show thatthey are learning but should not be included inadequate yearly progress determinations.

In response to a question from RepresentativeKelsch, Mr. Johnson said no student would be exemptfrom any assessment but the student's growth wouldbe measured longitudinally, i.e., over time. He said astudent's growth would be compared against thatstudent. He said some of those students cannotattain some of the benchmarks that have been set formaking adequate yearly progress and never will attainthose.

USE OF TITLE I DOLLARS FOR ENGLISHLANGUAGE LEARNER PROGRAMS

Mr. Johnson said the coalition needs some clarifi-cation regarding how Title I dollars can be used forELL programs. He said that clarification mightalready have been provided. He said DPI is underthe impression that Title I dollars cannot be spent onELL programs. He said that is what school districtadministrators told him in May 2004. He said theclarification might already have been made. He saidseveral school districts in the state have beenpermitted to use Title I dollars for ELL programs. Hesaid all schools should be allowed to use Title Idollars for ELL programs. He said schools find their

hands are tied in delivering services to ELL studentsbecause of limited funds. He said they cannot accessdollars available under the NCLB Act until the schoolis determined not to be making adequate yearlyprogress.

Mr. Johnson said the second request is that clarifi-cation be given for Title I assistance to ELL, nativeAmerican, and socioeconomically deprived students.He said the coalition believes that money should bemade available for use as soon as a subgroup is iden-tified as not making adequate yearly progress, ratherthan waiting until the school is identified as notmaking adequate yearly progress. He said moneyshould go to these subgroups as soon as possible.He said this issue needs to be addressed within theNCLB Act itself.

ASSESSMENT SELECTIONAND MEASUREMENT

Mr. Johnson said growth or cohort longitudinaldata which can measure an individual student'sacademic growth during the grade levels for whichthey will be tested needs to be used to determineprogress toward adequate yearly progress instead ofa status grade level measurement that comparesgroups of students as they pass through a gradelevel. He said the status measurement could still beused to assist in finding curricular gaps and to look forinstructional strategies that appear to work for allstudents regardless of group differences. He saidone needs to measure a group's growth as it movesthrough time. He said this request needs to be madeto the United States Department of Education. Hesaid we can still retain the status model but use it onlyfor curricular issues. He said the students, thedistricts, and the community would benefit by lookingat how much students grow from year to year andshowing that each group individually grows as they gofrom grade to grade. He said that is a more importantand sound research methodology for showing thatlearning is taking place.

In response to a question from RepresentativeKelsch, Mr. Johnson said other states are doing thestatus tests in conjunction with cohort testing. Hesaid Florida had both the cohort and the status modelin place. He said he believes that Nebraska is usingthis model has well. He said Nebraska's model ishowever a little bit different. He said in Nebraskathere is a state test that measures only writing skills.He said the school districts and individual schools canthen set up the assessments that they wish to use todetermine adequate yearly progress. He said theassessment tools selected by individual schools andschool districts must meet all the reliability and validitystandards required of the norm-referenced tests thatthe state uses. He said that is run through the BurosInstitute for certification.

In response to a question from RepresentativeKelsch, Mr. Johnson said both testing methods could

No Child Left Behind 4 September 9-10, 2004

and should be used. He said one needs to haveknowledge of curricular gaps. He said the coalitiondoes not believe that the status model should be theone used to measure adequate yearly progress.

Mr. Johnson said the coalition proposes thatschool districts be allowed to develop and select theirown assessments based on local standards, providedthe assessments are at least as rigorous as those atthe state level. He said the coalition is not advocatingthat the state assessment be removed. He said thereshould be a state assessment so that districts andschools throughout the state can be compared.

In response to a question from RepresentativeSitte, Dr. Johnson said he does not know whetherthere is widespread dissatisfaction with the TerraNova. He said the concern seems to be more withhow the cut points are determined for the Terra Nova.He said we are still using norm-referenced tests todetermine what should be used as a criterion refer-ence. He said one sets particular criteria orcurriculum-referenced questions that the studentsshould meet, but one does not norm them. He said ifone norms them, 50 percent will score above thenorm and 50 percent will score below the norm. Hesaid if the benchmark is set higher than 50 percentand one uses a norm-referenced test to get thatcalculation, the students that are falling below the 50percent will never make adequate yearly progress.

Mr. Johnson said the Terra Nova uses curriculum-referenced, i.e., criterion-referenced, questions in thatprocess. He said a lot of times testing companies willuse the questions they have used in developing theirnorm-referenced tests and just use them again in thatprocess. He said the Terra Nova is an adequate andgood assessment. He said the coalition would like toprovide school districts with some additional optionsin determining whether or not they make adequateyearly progress.

In response to a question from RepresentativeSitte, Mr. Johnson said the Iowa Test of Basic Skillswas a norm-referenced test. He said it was notcriterion-referenced. He said there was a percentilegiven for a particular ability and that percentile wasset up to break down a group into a normal belldistribution.

SUPPLEMENTAL SERVICESAND TRANSFERS

Ms. Nielson said North Dakota should allow itsschool districts to have control over supplementalservice dollars. She said dollars allocated to serviceproviders should be available to school districts todevelop internal supplemental services within theirdistrict or consortium. She said under current NCLBrules, school districts have to pay premium prices andhigh transportation costs to reach the six serviceproviders available in the state.

Ms. Nielson said a school district or a joint powersagreement (JPA) should be able to become the

supplemental service provider by making licensedteachers available. She said some have said that thiswould work as long as we were not using the teacherfrom the third grade classroom that did not meetadequate yearly progress. She said the reason thatthe Sylvan Learning Center is able to boast that itdoes better than the classroom teacher is that it hasone to two students per teacher. She said that couldalso be done in tutorial services. She said a class-room teacher who is fully qualified and who spendsextra time with a particular student, like the SylvanLearning Center staff does, can end up with the sameresults. She said there is no reason we should bethrowing huge amounts of money toward transporta-tion costs and buying educational services fromoutside providers when we have perfectly qualifiedteachers in our schools. She said this should be setup to allow any qualified teacher to provide thetutoring services. She said if the services areprovided through a school district, a consortium, or aJPA, one is not sending state and local dollars out toprivate sources so they can get rich providing serv-ices one on one. She said in order to have reallysuccessful interventions, supplemental services andtutoring need to happen in real time. She said astudent needs to have access that day to what isbeing worked on in the classroom. She said thecloser the students are to their supplemental services,the better the results will be.

Ms. Nielson said current law may already allowschool districts to set up their own supplementalservice centers. She said the coalition has not beenable to figure out whether that is the case. She said ifthis is the case, then districts need to be encouragedto do that. She said districts would need to be toldthat they do not have to send their students 150 or200 miles down the road to the nearest SylvanLearning Center. Under current law, she said, if aschool does not make adequate yearly progress, all ofthe students in the school are given the opportunity tobe transferred at the school district's expense. Shesaid the coalition believes that only individual studentswho do not meet the adequate yearly progress profi-ciency requirements should be eligible to transfer toanother school or to receive supplemental services.She said the coalition does not believe that a schooldistrict should be required to pay for transportationand for supplemental services to students who aremeeting adequate yearly progress. She said thosestudents who did not meet adequate yearly progressand who believe that that is the fault of the schoolshould be the only ones entitled to receive supple-mental services or to be transferred.

In response to a question from RepresentativeDelmore, Ms. Nielson said the coalition is limiting itsrecommendation to those students who are eligiblefor supplemental services or transfers under theNCLB Act. She said if more parents begin to take

No Child Left Behind 5 September 9-10, 2004

advantage of open enrollment procedures, that wouldsend a message to the schools as well.

HIGH SCHOOL GRADUATION RATESMs. Nielson said schools are currently penalized

for keeping students in school if those students haveattended high school for more than four years. Shesaid the coalition therefore believes that 21 should beestablished as the appropriate age for special educa-tion students in meeting the 95 percent graduationrate requirement. She said DPI has requested thatchange. She said under the Individuals With Disabili-ties Education Act (IDEA), school districts mustprovide education to special education students untilthey are 21. She said she believes the federalgovernment will allow that request.

Ms. Nielson said graduation rates should howeverbe based on a six-year cycle rather than a four-yearcycle for regular education students. She said if thegoal is to have students graduate with a high schooldiploma, then students should be able to stay inschool until they are able to do that. She said thecoalition picked six years because by then studentsare around 21 and they are not likely to stay aroundmuch longer. She said the coalition believes thatschools should not be penalized just because astudent takes one or two additional years to obtain adiploma. She said the coalition also believes that thecompletion of the general educational development(GED) requirements and alternative high schoolprograms should be recognized in graduation rates.She said they are recognized as high school comple-tion equivalencies. She said students go to alterna-tive schools for any number of reasons.

HIGHLY QUALIFIED TEACHERSMs. Lokken said the highly qualified teachers and

core areas have huge impacts on schools in thisstate, especially the rural schools. She said the coali-tion's recommendations are not meant to diminish theexcellent work that the Education Standards andPractices Board has done to meet the requirements ofthe NCLB Act.

Ms. Lokken said the coalition's first recommenda-tion in this area is that teachers licensed as of July 1,2003, should be recognized as being highly qualifiedfor purposes of the NCLB Act. She said that simplestep would allow those teachers to continue to servetheir students and their school districts with the skillsthat have resulted in excellent student achievement.She said that would mean that they could teach intheir minors.

Ms. Lokken said we know that South Dakota's planpermits an individual to teach in a minor area and stillbe considered highly qualified. She said SouthDakota's plan has been submitted but it has not yetbeen approved. She said it is the wish of the coalitionthat individuals who hold pre-2005 North Dakotateaching licenses with science or social studies

composite majors be considered highly qualified forpurposes of the NCLB Act. She said this means thatteachers would need fewer credits than the EducationStandards and Practices Board currently requires.She said after July 1, 2006, high school teachers whohave a major in a content area should be recognizedas being highly qualified in a second area if they have24 semester hours in that second content area. Shesaid this would not apply to individuals having scienceor social studies composites. She said the EducationStandards and Practices Board requirement will be 32hours.

Mr. Westby said if a teacher has a major, but alsohas at least 24 hours in another content area, thatindividual would be recognized as being highly quali-fied in that second content area. He said this recom-mendation is based on discussions with Mr. EugeneW. Hickok, Deputy Secretary of Education. He saidMr. Hickok said he was aware that some collegesgrant majors upon the completion of 24 semesterhours. He said this would be the equivalent of whatwe have had in the area of college minors. He saidthis proposal would allow teachers to teach in theirminors. He said this request would have to be put inat the federal level. He said it would require someeffort on the part of the North Dakota CongressionalDelegation.

Ms. Lokken said individuals teaching in grades 6through 8 with a teaching license issued after July 1,2006, and having a minimum of 16 semester hours inthe content area they are teaching should be consid-ered highly qualified for purposes of the NCLB Act.

Ms. Lokken distributed a document entitledTeacher Quality Provision, attached as Appendix C.She distributed another document entitled NorthDakota's Definitions of Highly Qualified, attached asAppendix D. She said the former document containsthe teacher standards from DPI and the lattercontains the teacher standards from the EducationStandards and Practices Board.

Representative Delmore said in a school districtthe size of Grand Forks there are a number of indi-viduals who have been teaching and now have to berecertified. She said that will be a cost to somebody--either to the individual or to the school district. Shesaid it is her understanding that every teacher inNorth Dakota will have to be recertified.

In response to a question from RepresentativeDelmore, Mr. Westby said the coalition discussed theissue of recertification expense but did not address it.He said it is important that each school board beallowed to decide how that should be handled. Hesaid some will help the teachers in whole or in part.

Representative Delmore said the coalition has notaddressed the number of teachers who have lifetimecertificates. She said a lifetime certificate did nothave anything in the fine print stating that the lifetimecertificate was valid only until the rules are changed.

No Child Left Behind 6 September 9-10, 2004

She said that was done to North Dakota by thefederal government.

In response to a question from RepresentativeDelmore, Ms. Lokken said individuals with lifetimecertificates would be covered under the first recom-mendation governing teachers licensed prior to July 1,2003. She said if an individual was highly qualifiedwhen the NCLB Act was passed, that individual wouldcontinue to be highly qualified.

In response to a question from Senator Wardner,Ms. Lokken said if an individual is teaching grades 7through 8 in a kindergarten through grade 8 schooland that individual is licensed, then that individual isdeemed highly qualified. She said it is the wish of thecoalition that this law not force schools to go to thatmethod of serving their student populations in grades6 through 8. She said that is why the coalition isseeking the changes. She said when there is diffi-culty getting individuals to teach at the middle schoollevel in the first place, we cannot keep raising thestandards. She said schools will respond by going toa 1 through 8 and 9 through 12 delivery system.

In response to a question from RepresentativeDelmore, Ms. Lokken said North Dakota is more strin-gent than surrounding states in many areas.

In response to a question from RepresentativeDelmore, Ms. Lokken said the coalition would neverwant to diminish the quality of teachers. She saidNorth Dakota can be a beacon for what is good inclassrooms across the state. She said that wasachieved with the teachers who were qualified onJuly 7, 2002.

In response to a question from RepresentativeSitte, Ms. Lokken said she did not read the EducationCommission of the States report that predicted nostate would meet the highly qualified provision by2006. She said she would not be surprised to findthat is true. She said all of the states across thenation are having a tough time meeting the standards.

Ms. Lokken said we should recognize NorthDakota licensed special education teachers as beinghighly qualified for teaching identified "core subjects"for high school graduation. She said such positionsare very hard to fill. She said the IDEA is still beingconsidered at the federal level. She said a determina-tion has not been made on whether individuals havingspecial education degrees need to be certified inevery core area. She said the federal government islooking at that as something they want to do. Shesaid the National Education Association has workedvery hard to promote the concept that our teachers inspecial education are highly qualified in core areaswithout having to have a separate degree in eachcore area. She said it would have a huge impact onNorth Dakota if that requirement had to be met. Shesaid those positions are already very hard to fill.

Ms. Lokken said the Nebraska plan provides thatspecial education teachers who teach special educa-tion students in core areas are considered to be

highly qualified when they teach the subjects incollaboration with a classroom teacher who is highlyqualified. She said teachers who are doing a goodjob in the classroom need to be allowed to continue todo that.

Representative Delmore said she wondered ifanyone on the coalition was aware of the things thathave been asked for by DPI. She said a number ofavenues have been opened up to rural schools andshe wondered if DPI has asked for any flexibilityprovisions.

Ms. Lokken said DPI has asked for flexibility. Shesaid the coalition is concerned that DPI ask for all theflexibility that is available.

CORE AREASMs. Lokken said the coalition wants to define the

core areas as those that the states are required totest under the NCLB Act. She said therefore the coreareas would be English language arts, mathematics,and science. She said the NCLB Act has identifiedcore areas as English, reading or language arts,mathematics, science, foreign languages, civics,government, economics, arts, history, and geography.She said the NCLB Act provides that the core areasare defined at the state level. She said there is diffi-culty recruiting and retaining educators and this wouldreduce problems that school districts are having inmeeting highly qualified staff requirements currentlyidentified in the NCLB Act. She said North Dakotamust carefully consider the future ramifications to itsteacher quality provisions. She said North Dakotamust consider highly qualified requirements that caneasily mesh with other states. She said North Dakotais near or at the bottom for teacher compensation andat the top for stringent requirements. She said thatcombination makes it very difficult to recruit and retainthe highly qualified people we want in our classrooms.She said the requirement of a highly qualified teacheris not reduced by these recommendations. She saidNorth Dakota teachers have proven their ability todeliver quality education and continue to engagestudents every day. She said quality education isbest accomplished with a live teacher in every class-room, small class size, up-to-date classroomresources, and a support system. She said ruralschools do not have the luxury of hiring a teacher forevery core area.

FUNDINGMs. Nielson said the coalition's position on funding

for the NCLB Act does not require an amendment tothe state's accountability plan. She said it would begood for North Dakota to calculate the full cost ofimplementing the NCLB Act, taking into account othercuts that have been made in the Elementary andSecondary Education Act (ESEA). She said NorthDakota should forward a message to Secretary Paige,to Congress, and to the President, stating that the

No Child Left Behind 7 September 9-10, 2004

failure of the federal government to fund suchprograms should trigger a moratorium on the state'scompliance with the NCLB Act.

Ms. Nielson said the coalition supports the fullfunding of the ESEA. She said Title I allocations arenot sufficient to cover the cost of providing neededservices designed to bring low-performing students toproficient levels. She said Title I money for imple-menting districtwide programs that have been effec-tive in getting Title I schools off program improvementis not available. She said this is an added expensethat school districts must bear in their quest to meetadequate yearly progress.

Ms. Nielson said IDEA has been grossly under-funded since its inception and consequently its costsmust also be borne by the states and school districts.She said the state's appropriation for special educa-tion contracts was underfunded by approximately60 percent this past biennium.

In response to a question from RepresentativeKelsch, Ms. Nielson said the coalition has not at thispoint made a calculation of what the true costs are forthe NCLB Act. She said she does not know if DPI hasmade a concerted effort to find out the cost of imple-mentation. She said she does not know if local super-intendents have made that calculation either. Shesaid what is known is that between special educationand the NCLB Act, the resources needed to meet thegoals are not available.

Mr. Johnson said he believes that Wisconsin esti-mated that approximately $2,600 is needed to bringeach student who is not making adequate yearlyprogress up to the expected level. He said there areother states that have researched the costs of theNCLB Act, but their situations are very different fromwhat we have in this state and consequently cannotbe fairly applied. He said there is a need for anhonest and fair look at what the NCLB Act will cost.

CONCLUSION OFCOALITION'S PROPOSAL

Ms. Nielson said the proposals of the coalition willbe met with phrases such as "the feds will not allow it"and "we cannot do it." She said the coalition urgesthe interim committee to agree that the requestsshould be put forward. She said an attempt should bemade to try to make the NCLB Act workable for NorthDakota students and teachers.

Mr. Johnson said some of the issues in the NCLBAct need to be challenged. He said the NCLB Act is abig issue in Congress and that is why right now noaction is being taken on it. He said he believes thatsome changes might be seen. He said the NCLB Actis not going to go away. He said the groups repre-sented by the coalition need to recognize that.

Mr. Johnson said in October 2003 the coalitioncould find only six supplemental providers in the state.He said this is an important issue. He said thefunding for this needs to be changed.

In response to a question from RepresentativeKelsch, Mr. Johnson said the only service provider isSylvan Learning Centers. He said the centers arelocated in Fargo, Grand Forks, Bismarck, and Minot.

Representative Kelsch said the provision ofsupplemental services is a major issue because of thetransportation that is involved. She said the otherchallenge is ensuring the quality of the services andthe consistency of the services across the state.

In response to a question from RepresentativeKelsch, Mr. Johnson said qualified supplementalservice providers are needed as are standards toensure such. He said the teacher licensing procedureshould be used to create qualified supplementalservice providers. He said the organizations that herepresents want to hire licensed teachers who arespecialists in particular areas to serve as supple-mental providers. He said there would always have tobe training sessions. He said most remediations areafter the fact and usually involve repetition of a gradeor enrolling in summer schools. He said the studentwho gives up halfway through the school year is notbeing helped. He said it is important that schooldistricts be able to hire supplemental serviceproviders as part of their district membership.

Mr. Johnson said some of the issues that the coali-tion raised do press the edge of what is allowableunder the NCLB Act. He said there are many statesand state legislators looking at similar things but notexactly the same things. He said some of the issuescan be addressed with minor modifications becausewe already know they are being done in other states.He said other things, such as opportunities forschools to choose their own assessments, should beoptions available if the schools elect to pursue such.

Ms. Lokken said the coalition wants to continue tohave the kind of quality education that was provided inthe state in the past. She said the NDEA membersand the people who work in the public schools of thestate are not afraid of full assessments. She said theyare not afraid of stringent requirements. She said thelaw requires one to fail in order to get the resourcesthat research shows makes a difference in studentlearning. She said that needs to be turned around.She said there is an alternative certification that indi-viduals can go through. She said if they have acontent area, they can take a test and become ateacher. She said that flies in the face of raising thestandards for the practicing teachers that are alreadyin the field. She said there is no reference to peda-gogy and pedagogy is what makes a teachersuccessful in the classroom.

Representative Hunskor said it is important tolisten to the educational community and in particularthe superintendents, the school boards, and theteachers. He said they know if the students in theirschools can compete at Harvard and Yale andWahpeton. He said they know if their teachers are

No Child Left Behind 8 September 9-10, 2004

highly qualified. He said we are going to have to inte-grate some of their feelings and thoughts.

Representative Kelsch said Nebraska's account-ability plan is held in very high regard. She said a lotof states are looking at what Nebraska has done.

IMPLEMENTATION OF THE NO CHILDLEFT BEHIND ACT IN SCHOOLS

At the request of Chairman Kelsch, Mr. BernieBurly presented testimony regarding the NCLB Act.He said he works for a grant program called DakotaLearning Systems. He said he conducts professionaldevelopment for North Dakota teachers on a state-wide basis. He said in any given year he will workwith up to 150 kindergarten through grade 12teachers and especially those teaching mathematicsand science. He said he does not work for DPI or anyschool district. He said his fiscal agent is the NorthValley Career and Technology Center. He said hebegan his teaching career in 1974 in Rugby.

Mr. Burly said the NCLB Act is filled with a lot ofchallenge and often generates anger. He said hewants to talk about what he has seen from teachers.He said for the first time teachers from kindergartenthrough grade 12 are sitting side by side, talkingabout what students need to know and should be ableto do at the various grade levels. He said this isaccomplished by first looking at the state contentstandards.

Mr. Burly distributed a document entitled K-10Mathematics Standards, attached as Appendix E. Hesaid North Dakota documents have not gotten highreviews by institutions like the Fordham Foundation.He said they are considered weak documents. There-fore, he said, they also look at other states' standardsthat have been given high praise. He said NorthDakota teachers are asked to compare and contrastand eventually make decisions about what the expec-tations for students should be. He said they havediscovered things such as the fact that data analysis--probability and statistics--is not being taught in manyNorth Dakota kindergarten through grade 8 systems.He said North Dakota does assess, not normatively,but on a criterion-referenced basis. He said studentsare not compared to students in North Dakotaanymore. He said students are compared to a stan-dard. He said they also discovered that North Dakotagovernment is not covered in some high schools. Hesaid in some schools North Dakota government isaddressed somewhere between the fourth and sixthgrades. He said that is not developmentally appropri-ate. He said in science education things like inquiryhave been completely overlooked.

Mr. Burly said they also discovered that theyalways teach the parts of speech beginning in thefourth grade and going right through senior high. Hesaid the teachers discovered that the reason studentsdo not learn this is because we have taught them thatthey do not have to. He said the next teacher in the

next classroom in the next year will teach the parts ofspeech again.

Mr. Burly said for the first time teachers are lookingseriously at North Dakota state assessments. Hesaid they are looking at the scores and asking wherethey are missing the point and where their schooldistrict is missing the point. He said teachers arelooking at algebra scores and if they determine thattheir students did not score as well as hoped, they goback into the classroom and look at how thecurriculum can be improved.

Mr. Burly said he is disturbed when people talkabout students not making adequate yearly progress.He said that is not what the NCLB Act requires. Hesaid students may not meet the standards but it is thedistricts that either meet or do not meet adequateyearly progress.

Mr. Burly said teachers in music, art, and evencareer and technology education are realizing that wemust all teach writing and mathematics. He said weare doing this because we want the students to dowell. He said music programs can be full of math. Hesaid art programs can be full of science.

Mr. Burly said we are finally seeing subgroupstaken seriously. He said ELL students and studentswith disabilities are being taken far more seriouslythan they ever were before. He said teachers arestarting to work with best practices because we knowthose students count. He said we cannot justaverage them in with all of our gifted and talentedstudents and say that we are doing just fine.

Mr. Burly said he is seeing more special educationteachers participating in continuing educationregarding standards. He said he believes this ishappening because special education teachers wantto know what the standards are. He said they arelooking at the standards and indicating that they cando this too. He said maybe they will not do it thesame way as regular education students but theywant to know what the expectation is for them andtheir students.

Mr. Burly said he is seeing teachers who want tobe graded for their continuing education efforts, notjust given a pass/fail. He said in the past teacherswould show up for approximately 15 hours, receivetheir nod, and go home. He said now teachers wantto be graded so that they can put the grades in theirportfolios and prove that they are highly qualified.

Mr. Burly said he is also seeing the growth of after-school programs such as the 21st century communitylearning centers. He said there are 14 in NorthDakota and they need to be supported. He said thatis a program that must be standards-driven. He saidthat is a place where children and especially thosewho are target populations can go after school andwork on the skills they are falling behind on in class.

Mr. Burly said North Dakota needs to obtain aclearer vision, especially with respect to definitions.He said he is tired of having to define for North

No Child Left Behind 9 September 9-10, 2004

Dakota teachers what a standard is and why it isimportant. He said there needs to be a clear delinea-tion between the old way of doing things and the newway. He said even listening to the comments earlierin this meeting about norm-referencing and criterion-referencing demonstrates that there is still a lot ofmisinformation. He said North Dakota is a criterion-referenced state and has been for years. He said it istime for standards in every content area, includingarts and music and career and technology education.He said everyone needs to focus on what youngpeople should know and be able to do. He saidgreater staff development is needed in standards use.He said afterschool programming needs to bepromoted as a way to help students and especiallythose who are struggling.

Representative Delmore said she is happy thatMr. Burly noted the importance of pedagogy. Shesaid that is one thing that does not exist anywhere inthe NCLB Act, much to her chagrin. She is alsoconcerned about where funds will come from if wepromote afterschool programs and standards-settingin all areas.

In response to a question from RepresentativeDelmore, Mr. Burly said with respect to pedagogy, theNCLB Act is clearer than thought. He said there arethree kinds of standards. He said content standardstell us what students should know and be able to do.He said they are essential and the base work for allother efforts. He said another type of standard is theachievement standard. He said achievement stan-dards tell us how good is good enough. He said theytell us when a student has reached proficiency. Hesaid the third piece is often overlooked in the law. Hesaid it is the curriculum standard--the best practices ofthe district. He said this area has the biggest teeth init. He said the curriculum standards require thedefining of the best practices of teachers and theschool district to get more students to reach thecontent standards, as measured by the achievementstandards. He said North Dakota tends to overlookthat piece. He said he cannot understand how Title IIprofessional development funds can ever get returnedto Bismarck, especially when there are so many staffdevelopment needs and especially when teachers aretrying to understand the three types of standards andhow the standards work together.

Mr. Burly said one is going to find differingresearch on what are the best practices. He said hebelieves one can identify a standard and get multiplestudents to that standard, but not in the same way.He said people can differ on what are the best prac-tices but without exception all of the best practices arestandards-driven. He said teachers need to learn theart of crafting units of instruction. He said one canquote the standard, the topics of that standard, andthe grade level expectations of the students. He saidthe second part is knowing when the child reachesthat goal. He said we need to measure that success.

He said the third component is determining the bestteaching practice to get the students to the desiredpoint. He said that is a major change from the waywe used to teach.

Representative Delmore said she taught for 30years and has seen a lot of things come and go. Shesaid we also need to have quality teacher inservice.She said some of these expectations need to betempered by teaching style. She said not all of thesame pedagogy works equally well for all teachers orfor all students. She said there will be a price formeeting such an ambitious schedule. She said allstudents learn but not at the same rate and not in thesame way. She said we need to look at thesubgroups and at our expectations that thosestudents will reach the goals as quickly as otherstudents.

Mr. Burly said teachers approaching the samecontent do not have to teach in the same way. Hesaid some teachers do very well by the drill-practice-lecture method. He said if they have discipline in theclassroom, the respect of the students, and theachievement data, we should not argue with success.He said standards-based education does not turnteachers into robots. However, he said, if there is adistrict that is not making adequate yearly progress,and one is seeing that a certain teaching style is justnot working, then it is time for the district to come forthand say it must make better use of Title II resources.

Mr. Burly said 21st century community programsare expensive. He said they cannot be daycareprograms for our communities. He said they aredesigned to be programs rich in standards-basededucation but taught in a different way. He said it ishard to take a seventh grader who has been sitting instraight rows all day and suggest that that individualdo more of the same. He said that is why there is alot more flexibility in afterschool programs. He saidthere may be a cooking club to learn math skills or anewspaper to learn writing skills. He said eventhough the programs are a lot more activity-based,they must still be built around content standards. Hesaid if a school district is willing to keep students inthe building, it needs to have an increase in founda-tion aid, because the staff is working longer andtargeting students longer. He said earlier in the day areference was made about transporting students fromNew Town to Bismarck for supplemental services. Hesaid perhaps the afterschool program at New Townneeds to be closely examined and perhaps it needs tobe funded at a higher level.

In response to a question from RepresentativeSitte, Mr. Burly said he is not familiar with the WhatWorks Clearinghouse.

Representative Delmore said we are askingstudents to be in school longer and longer each day.She said she is wondering about parental involvementin a child's education. She said parental involvementis supposedly an integral part of the NCLB Act. She

No Child Left Behind 10 September 9-10, 2004

said much of what she hears leaves out parentalinvolvement.

In response to a question from RepresentativeDelmore, Mr. Burly said the afterschool programs withwhich he is involved do require that parents partici-pate to the greatest extent possible. However, hesaid, there are some realistic issues. He said if astudent is having difficulty meeting a standard, wewant that student to stay after school, regardless ofwhat the parent is doing. He said sometimes schoolstaff find themselves convincing a parent that theparent should allow the student to stay after school forhelp. He said there is also a real problem with two-career families. He said if one parent stays home orgoes home early to wait for children after school,there are economic consequences to the families. Hesaid our current economy is not very family-friendly.He said in many 21st century community programs,there are waiting lists and families who have a parentwaiting at home are not a priority.

At the request of Chairman Kelsch, Ms. LindaPaluck, Curriculum/School Improvement Director,Williston Public Schools, presented testimonyregarding the NCLB Act. She said this is her secondyear in that position. She said for many years theWilliston Public School District did not have acurriculum director or coordinator or even a schoolimprovement director.

Ms. Paluck said she began her teaching career atDorothy Moses Elementary School in Bismarck. Shesaid it is an exciting time to be in education. She saidthere is a network of involvement that has developedin this state. She said she is first and foremost aclassroom teacher. She said she began her currentjob by exploring data. She said when she was aclassroom teacher she did not look at state results.She said she was mainly concerned with what herstudents were doing in the classroom, where theywere at the beginning of the school year, how theywere progressing through the year, and where theywere at the end. She said there was nofollowthrough. She said now we are becoming adata-driven society. She said she is now sharing datawith teachers and staff. She said some of theteachers and staff knew that the Williston scores werebleak. She said some of them did not. She saidwhen the scores came out, those who did not expectthe poor results felt like they had been kicked.

Ms. Paluck said she knew that the Williston scoreswere the lowest in mathematics. She said she askedif she could establish grade-level meetings, startingfrom kindergarten and working up through grade 12.She said the middle school and the high school havemathematics departments and English departmentsand they would meet periodically. She said they werenot strangers to each other. She said that was notthe case at the elementary level. She said Willistonhas four elementary schools. She said when shebrought all of the fourth grade teachers together, it

was really the first time they had sat down and talkedabout pedagogy, best practices, what the scoresmean to the students, and what changes needed tobe made.

Ms. Paluck said she has found that historicallyteachers did not share what they were teaching intheir classrooms. She said when they first beganmeeting, she asked the teachers to bring along theircurriculum maps. She said she wanted to find outwhat they were teaching. She said she did this withall of the grade levels and compiled a great deal ofmaterial. She said the teachers had no awareness ofwhat was happening in other grade levels.

Ms. Paluck said she meets with her teachers everytwo months. She said they have looked at all of thestate standards and benchmarks and compared themagainst what was actually being taught at each gradelevel. She said they identified gaps and better definedwhat the benchmarks meant. She said graduallyteachers began to feel more comfortable sharing whatthey were doing in their classrooms. She said manyschools are a collection of one-room schoolhouses allsituated in one building. She said the teachers just donot have the discussions about pedagogy andlearning styles.

In response to a question from Senator Cook,Ms. Paluck said 30 years ago our world was huge.She said if we went to another county, that was amajor trip. She said we can now get information andresearch from Japan in a matter of seconds. Shesaid when she went to college, she did not have thekind of mathematics background that students needtoday. She said what teachers have been doing allthese years was not wrong, but it needs to beexpanded upon. She said some of our teachers wantto do too much in the classroom.

In response to a question from Senator Cook,Ms. Paluck said she is amazed at what our prospec-tive teachers are bringing to the classroom. She saidshe sat in on several interviews and all but one candi-date had a standards-based portfolio. She said oneeven had it on a CD. She said it is encouraging tosee how well-prepared our new teachers are.

Mr. Burly said when he was first hired, he was toldthat he was the ninth grade English teacher. He saidhe should have asked what they wanted their childrento know and be able to do at the end of the ninthgrade. He said we did not go in the wrong direction,we simply had no direction.

At the request of Chairman Kelsch, Ms. EllenKnudson presented testimony regarding the NCLBAct. She said she has been teaching for about30 years and has a background in elementary educa-tion. She said she is now involved in providing staffdevelopment in mathematics.

Ms. Knudson said there is such a fragile elementto mathematics instruction in our education system.She said she is talking about mathematics instructionbecause curriculum, instruction, and assessments is

No Child Left Behind 11 September 9-10, 2004

what the NCLB Act is all about. She distributed adocument entitled Mathematical Learning Communi-ties, attached as Appendix F.

Ms. Knudson said we have standards. She saidthe standards are designed to help teachers helpstudents make progress. She said we have national,state, and local standards. She said teachers'shelves are lined with standards. She said they readthem and interpret them in vastly different ways. Shesaid we assume that teachers can make sense of thedocuments when in fact the sensemaking comes fromtheir backgrounds and experiences and the meaningsthat they bring to the words.

Ms. Knudson said our teachers were often skilledat teaching procedures and computations. She saidthe need for students to understand the underlyingconcepts was often neglected because the teachersthemselves did not understand such. She said theywere just doing the best job they could with what theyhad. She said today those teachers are still skilled atteaching rote procedures and basic facts but to bringdepth and meaning to those is a whole new area.

Ms. Knudson said in today's standards-basedmathematics classes, we are asking that students beable to use the information to reason. She said wewant our students to pass the tests and prove thatthey can go on to higher levels, but we also wantthem to be mathematically literate--to be able to makesense of the information.

Ms. Knudson said what the tests are asking fortoday is far different than what they asked 30 yearsago. She said today we are expecting the applicationof principles. She said teachers often have difficultywith it themselves, yet we expect them to teach thematerial in deep and powerful ways. She said weneed to deliver professional development in a waythat helps teachers teach students to becomepowerful mathematical thinkers. She said we cannotjust put this expectation on a teacher's shoulders.She said we also need to ask how an administratorcan evaluate and observe and support a teacher whois teaching in this way. She said we also need tothink about how parents can help when a child comeshome with a mathematical problem.

Ms. Knudson said teachers often see this as over-whelming. She said we cannot reach the goal of theNCLB Act if we cannot work collaboratively with thevarious education stakeholders.

Ms. Knudson said in the past mathematics classhas been strictly computation. She said today it isreasoning, application, and understanding in deepand flexible ways. She said mathematics must alsohave some connection to solving problems in real life.She said in order to support student understanding,we need parents, educators, and the communityworking in collaboration.

Ms. Knudson said in the Bismarck school districtnot only do they involve teachers, they also involvethe kindergarten through grade 12 administrators so

that they can understand why mathematics class ischanging, what it has to offer, why they shouldsupport it, and how they can be articulate in front ofparents.

Ms. Knudson said she is glad that we have theNCLB Act. She said we also have to ensure thateveryone in our community is supporting theadvancements and not going off in differentdirections. She said it is our aim in the BismarckSchool District to build a partnership that jointlyincreases mathematics achievement levels for allstudents and narrows the differences between diversestudent populations. She said this is a lofty goal butwith the right instruction and the right support, it canhappen.

Ms. Knudson said that assessments, however, arean important part of the overall goal. She saidteachers are overwhelmed with data and test scores.She said the problem is that teachers receive the testscores at the end of a month, at the end of a unit, atthe end of a semester, or at the end of a year. Shesaid teachers have a lot of concepts to teach. Shesaid at that point they cannot go back and reteach aconcept. She said they just tend to move on at thatpoint.

Ms. Knudson said we need to have a system thatallows teachers to utilize the information on a timelybasis and not merely receive it after they have alreadycompleted the area. She said we are starting to talkabout assessment-centered teaching. She said thisinvolves knowing one's goals on a daily basis andbeing able to assess progress toward the goals on adaily basis. She said we need to tailor our instructionto meet the needs of the students.

Ms. Knudson said we also need to balance theneed for assessments and reporting with the time forinstruction.

In response to a question from RepresentativeSitte, Ms. Knudson said the successful completion of40 problems might not always show that there is adeep understanding of a concept. She said one well-constructed problem that takes the whole class periodcan show far more understanding than 40 problems.She said with respect to homework one can sendthings home but if the support system is not there or ifthe parents literally tell their children what to doinstead of helping them think their way through theproblems, then very little is being gained.

In response to a question from RepresentativeDelmore, Mr. Burly said teachers must get students tothink critically because they do not know what will beon the test. He said teachers cannot memorize theassessments. Therefore, he said, the best outcomeon assessments can be achieved by getting studentsto think.

In response to a question from RepresentativeKelsch, Ms. Knudson said people who are very resis-tant to change take up a lot of time and do not go veryfar. She said data helps a lot. She said if we have

No Child Left Behind 12 September 9-10, 2004

data comparing fourth grade classrooms and we seethat one classroom is doing consistently better yearafter year, we look at the factors. Often it is justbecause the teacher has been involved in a lot of staffdevelopment. She said sometimes the data will helpinfluence doubters. She said at other times they useexercises and videos of others to show how thingscan be different. She said often it helps some realizethat their thinking has been quite suppressed. Shesaid once they start seeing shifts in student attitudes,they begin to think that maybe there is something tothis.

Representative Delmore said she is somewhatcynical because she has seen lots of things move inand out. She said she does not believe that this is thegodsend it is meant to be. She said it has us askinggood questions and going in a better direction thanwe have been, but there is almost an intimation thatthere is only one teaching model and if we could getteachers to use this and motivate students in aparticular way, they would always be successful. Shesaid each classroom and each student is different.She said if we had that ideal teaching model, wewould not need all the other things we are doing.

In response to a question from RepresentativeDelmore, Ms. Knudson said there is not "one" way toteach. She said there are principles of learning--principles of how people learn--that are core to what-ever content area one is addressing. She said thoseshould not differ. She said when administratorsevaluate teachers, there are certain key things forwhich they should look. She said it is not proceduralproscriptions but rather generic things that researchhas proven have a profound impact on learning.

Ms. Knudson said she too has seen a lot of thingscome and go. She said many of those things werevery good. She said unfortunately they were notmaintained because they were not sustained throughteacher development. She said often in education wehave attention deficits. She said we focus on onething one day and when something else pops up wefocus on it, rather than taking something sound andsticking with it. She said we need a system thatconstantly evaluates the success of programs and theneeds of teachers and students.

Ms. Paluck said professional development is ahuge need. She said we need to spend time helping,training, supporting, and listening to our teachers.

Representative Delmore said it is one thing ifteachers are asked to sustain one area like mathe-matics. However, she said, that is not what is beingasked, particularly at the elementary level. She saidwhen we call on teachers to do standards and bench-marks in every single area, it is no wonder thatteachers are frustrated and burned out. She said shelikes the idea of mastering one area before we moveon. Unfortunately, she said, that has not beenprovided for in the NCLB Act.

Mr. Burly said sometimes teachers tend to overdowhat we expect of them. He said having a dialogueabout standards clarifies what we expect teachers todo and often that is not as much as they have beendoing. He said such discussions setting forth respon-sibility help to free up classroom and teacher time.

Representative Kelsch said she wanted to look atpotential changes to the NCLB Act. Therefore, shesaid, she wants each of the teachers to suggest whatchanges they would like to see in the NCLB Act.

Ms. Paluck said students with limited cognitivedisabilities cannot be expected to meet the expecta-tions of the NCLB Act. She said we need to behonest about what levels of achievement we can real-istically expect of such students, especially as cutscores keep rising. She said students on IEPs havetall goals to achieve over a certain period of time.She said we might see remarkable growth in astudent over a year, but not in relation to a cut score.

Mr. Burly said he would like the state to considerall of its available resources, including Title I, Title II,ELL, Even Start, and Head Start, and determinewhether it is making the best use of the limitedresources and ensure that there is a common focus.He said he is more concerned with people who areangry about the challenges of the NCLB Act and whoare trying to scuttle the system. He said the system isgood for children. He said he is very concerned aboutsuggestions that subgroups ought to be thrown out.He said he does know of mathematics and scienceteachers who are not highly qualified for purposes ofthe NCLB Act, but when they teach, there is no doubtthat they are highly qualified. He said he is not certainthat this state should be compared to New York. Hesaid on the other hand, there are teachers who arevery surprised that after working with the EducationStandards and Practices Board, they were able toshow that they are highly qualified.

Ms. Knudson said at this time the focus for highlyqualified status is on grades six and above and in thecontent areas. She said in her capacity as a kinder-garten through grade 5 specialist, her job is to helpbuild content knowledge in teachers who have atmost taken one or two mathematics courses at thecollege level. She said that is not enough backgroundfor them to prepare students to function at the sixth orseventh grade level. She said there are resourcesavailable to help districts provide professional devel-opment to teachers so that a core knowledge basecan be provided to kindergarten through grade 5teachers. She said we have to work together. Shesaid students have to be taught content from thebeginning, not just from the sixth grade forward.

TESTIMONY FROM OTHERINTERESTED PARTIES

With the permission of Chairman Kelsch, Dr. DonPiper presented testimony regarding the NCLB Act.

No Child Left Behind 13 September 9-10, 2004

His testimony is attached as Appendix G. He said heis representing the Walsh-Pembina administrators.

Dr. Piper said the committee should not confusethe good things it heard from the panel of teacherswith the NCLB Act. He said the coalition put in hoursof work and research to bring a unified statementbefore the committee. He said this needed to havehappened in the winter of 2002, before the state planwas filed in January 2003.

Dr. Piper said what generally happens at theinterim committee meetings is that DPI comes downfor endless periods of time and presents a lot of infor-mation that the legislators do not understandregarding what DPI has already done with the NCLBAct's requirements. He said then the legislatorsengage in questioning and sometimes even heateddiscussions. He said unfortunately it has alreadybeen done and what the legislators say has noimpact.

Dr. Piper said the coalition's presentation was onlythe first step. He said the committee should take amore proactive rather than a reactive stance. He saidthe committee should not ask or even allow DPI tocome and talk about all of the things that they havedone and why. Instead, he said, the committeeshould get involved in things before they happen andif necessary recommend or demand changes.

Dr. Piper said in the summer of 2002, DPI inconjunction with the consultants, to whom millions ofdollars are being paid, set up a system to establishcut scores for the tests that we were to use. He saidthey brought together a number of teachers in thesummer and went through a process where theyasked the teachers to put down bookmarks for whatwould be advanced, what would be proficient, whatwould be partially proficient, and what would benovice. He said that was done by judgment. He saidthey would take a test like the fourth grade mathe-matics test and the consultants would line up thequestions from the easiest to the hardest questions.Then, he said, the teachers would be asked to putdown the bookmarks based on what the studentsshould know, i.e., how many questions they neededto get right to be proficient, etc. He said while itsounds like a reasonable process, it was a judgmentprocess, not a scientific process.

Dr. Piper said he was told that some groups ofteachers were not able to get it right the first time andso there had to be a second round and some had togo through a third round to get it right. He said thatimplies that there was a right answer they had toreach.

Dr. Piper said that was the process by which cutscores were set. He said those scores resulted in66 percent of North Dakota's 12th graders beingdeclared nonproficient in mathematics. He said norm-referenced tests at the time placed those samestudents at the top in the nation.

Dr. Piper said this committee should ask DPI somevery pointed questions about the setting of cut scores.He said in March 2005, DPI will bring teacherstogether again to set the cut scores for the new teststo be given in grades 3 through 8 and grade 11. Hesaid the committee ought to ask how the exercise in2005 will differ from the exercise in 2002. He said thecommittee ought to ask how and by whom theteachers will be chosen for participation in this exer-cise. He said the committee ought to ask what theteachers will be told about the consequences ofapplying these cut scores. He said some teachersindicated that they had asked what the effect ofapplying the cut scores to the test would be. He saidat least one teacher was told not to be concernedabout that. He said the committee ought to ask whatare the arguments that support the chosen process asthe one to be used for setting the cut scores.

Dr. Piper said these questions need to be askedbefore the process is set up. He said the LegislativeAssembly has to be brought back into the policy-making role regarding education in North Dakota andhow the NCLB Act is played out in this state. He saidpresently the people who have run the NCLB Act arethe United States Department of Education and DPI.He said the Legislative Assembly has not had muchto do with the Act. He said he would like to keepteaching that the Legislative Assembly has plenarypower in education and the local school boards are torun their schools. He said unless his suggestions arefollowed, he will have to say that the plenary power ofeducation lies with the United States Department ofEducation and DPI. He said he will be very disap-pointed if that happens.

Representative Sitte said at a meeting last fall, thecommittee was given test scores and was told that18 percent of our 12th graders are reading at theadvanced level. She said we found out this pastspring that that means they are reading at the grade 7through 9 levels. She said as a parent, she wants toknow the level at which her children are reading. Shesaid Dr. Paige has said repeatedly that the parent ofevery fourth grader has the right to know that his orher child is reading at a fourth grade level. She saidsince these tests are criterion-referenced, they can belinked to a specific level and she wonders how difficultit would be to convert the currently used designationsof proficient, partially proficient, etc., to grade levels.

In response to a question from RepresentativeSitte, Dr. Piper said grade levels are arbitrary configu-rations. He said we have invented grade levels. Hesaid they did not exist years ago. He said we decidedwhat is the third grade level and the fifth grade level.He said we did that by the normative measurement ofstudents. He said in a criterion-based approach,grade levels are not very significant. He said we setthe standards and then measure the students to seehow close they come to reaching the standards. Hesaid a parent must ask what should his or her child

No Child Left Behind 14 September 9-10, 2004

learn in the fourth grade and how much of that hasthe child learned. He said in a criterion-referencedapproach, grade levels are not that important.However, he said, they are very important to theparents.

Representative Sitte said there is a definite crite-rion in reading. She said she is an English teacherand she uses the Frye readability test. She said wecan go back and look at what fourth graders werereading in the 1910s and 1920s. She said whenevershe begins a teaching assignment, she gives herstudents three 3-minute tests. She said these giveher a 95 percent accuracy as to what their readinglevels are. She said this summer she found that theaverage reading grade in the class was seventhgrade plus six months. She said when she distributeda Tale of Two Cities she knew that the students wereincapable of reading and comprehending it becausethat book was written for the 12th grade level. Shesaid she knew the students were being set up forfailure and yet that was the curriculum she was told toteach. She said there are criteria out there. She saidone can even go to the core knowledge system. Shesaid when her children were in the first grade, shewanted them to be able to add and subtract to 10quickly. She said by the end of the second grade,she wanted them to be able to add and subtract to 20quickly. She said by the third grade they were to bemultiplying. She said there are certain things we grewup with which were standards in every age. She saidDPI has thrown out the window and put into place itsstandards, which are modeled on the national stan-dards. She said we need to determine what is reallyimportant at each grade level and how we can have acriterion-based test at each grade level.

Dr. Piper said the system about which Represen-tative Sitte spoke is the system he grew up with andthe system he taught for years. He said we haveturned the corner. He said we have become criterion-referenced in North Dakota. He said there are stan-dards for all of these areas. He said those standardswere developed long before the NCLB Act waspassed. He said it is a decision that has been madein North Dakota. He said many would say that it is agood decision and that it is educationally sound. Hesaid we are now supposed to be measuring ourstudents against the standards. He said he does notknow whether it would be possible to convert theaccomplishment of the standards in a criterion-referenced test to what Representative Sittesuggested with respect to reading ability. He said hebelieves it has been done in reading but not in theother subject areas. He said he does not believesuch a thing exists in science. He said while it wouldhave been a good thing, it would have been tooexpensive to offer both criterion-referenced tests andnorm-referenced tests at the various grade levels. Hesaid that would have given us a basis for comparison.He said parents would love to know that their child

has accomplished the fourth grade level. He said hedoes not believe that there is an easy way to do that.

In response to a question from RepresentativeKelsch, Dr. Piper said the key will be how theteachers who will select the cut scores will them-selves be selected. He said the coalition recom-mended the creation of an administrative committeemade up of teachers, administrators, and legislators.He said this is not the 25-member committee that DPIhas proposed. He said the interim committee shouldfollow the advice of the coalition and form thatcommittee quickly. He said that administrativecommittee should take as one of its first tasks thespelling out of who will determine the cut scores forthe next round of tests. He said teachers have to beincluded in setting the cut scores. He said thereshould also be some parents and legislators on thatcommittee, as well as several administrators. He saidwhat has happened is that teachers have beenchosen for the cut score setting committee by somemethod he does not understand. He said theteachers are largely subject area teachers. He saidalthough his background is in elementary education,he also served as an administrator and he said as anadministrator he very quickly found that the subjectarea teachers, who are generally at the high schoollevel, tend to think that their subject area is not onlythe most important in the curriculum, it is the only onein the curriculum. He said those individuals haveoverblown beliefs about what students should learn inmathematics and English language arts. He said thatneeds to be tempered with some elementaryteachers and some legislators, so that we just do notcall together a group of mathematics teachers anddirect them to set the cut scores.

Dr. Piper said it is very important for people tohave content knowledge but, in the long run, it is notreally content knowledge that makes a difference. Hesaid what makes a difference is the ability to under-stand and teach students. He said the coalition'sadministrative committee could set some parametersfor how the cut scores could be selected. He said hedoes not have it all well-thought out.

With the permission of Chairman Kelsch,Mr. Gaylynn Becker, Counselor, New Salem andHebron Public School Districts, presented testimonyregarding the NCLB Act. His testimony is attached asAppendix H. He said we need a state accountabilityplan that will work for North Dakota. He said profes-sional development is a key element that has beenabsent. He said every teacher at every school needsaccess to high-quality professional development.

With the permission of Chairman Kelsch,Dr. Charles DeRemer, Assistant Superintendent ofSchools, Fargo Public School District, presented testi-mony regarding the NCLB Act. He said he would liketo see three legislative changes. He said two wouldrequire federal-level changes and one would requirestate-level changes.

No Child Left Behind 15 September 9-10, 2004

Dr. DeRemer said he would like the schools tohave the flexibility to spend federal dollars whereneeded. He said this is particularly true of Title Ifunds. He said the Fargo Public School District has togive some money back to the state. He said Title Ifunds are designed for a very good reason, i.e., tohelp needy students who are not proficient in readingand mathematics. He said he has no problem withthe policy behind the law. He said the problem is thatFargo has 23 schools in its district. He said only nineare designated as Title I schools. He said he hasneedy students at all 23 schools and he cannot servethem with the money. He said Fargo is presentlyspending about $200,000. He said the district hasTitle I specialists for mathematics and reading at eachof the Title I schools. He said the irony is that all ofthe district's Title I schools made adequate yearlyprogress. He said four non-Title I schools did notmake adequate yearly progress and the district is notpermitted to use one penny of Title I funds to help thestudents in those four other schools.

Dr. DeRemer said we also need to change thedefinition of subgroups. He said Fargo has a highELL population. He said we have an obligation toserve them. However, he said, any time a group isset aside for identification, they become labeled. Hesaid a person is ELL because the person cannotspeak English. He said what used to happen is thatas soon as the student was determined to be able tospeak English, that student was no longer deemed tobe an ELL. He said a student who cannot speakEnglish is not going to make adequate yearlyprogress. He said the federal government allowedsome flexibility by providing that an ELL student whohas learned to speak English will be allowed toremain in the ELL category for three additional years.He said last week the district received 15 newstudents. He said they are black, they are ELL, andthey are low socio-economic students. He said theyrange from ages 11 through 18 and they have neverseen a school. He said the federal government givesthe district one year before the school has to countthe students for purposes of adequate yearlyprogress. He said the federal government shouldgrant the school district at least three years withinwhich to work with the students. He said those arethe changes that could happen at the federal level.

Dr. DeRemer said the state needs to get seriousabout professional development for its teachers. Hesaid we have left it up to the local school districts. Hesaid we need to make changes in our current law sothat district can provide professional development toteachers. He said he has suggestions that will actu-ally save districts money, not cost money. He said heis not asking for money for professional development.He said what he needs is time. He said right now hepays $100 per teacher per day to hire a substitute sothat he can provide professional development to ateacher. He said it is a double whammy. He said not

only does it cost the district money, but the teacher isaway from the students. He said a school districtshould not be taking teachers away from the students.However, he said, right now there is no alternative.He said the district is tied into the teachers' contracts.

Dr. DeRemer said we need to find additional staffdevelopment days within the contracts and we needto give school districts the latitude to find time in theircurrent schedules to do that, without being detri-mental to the students. He said professional develop-ment has long been criticized as being lousy. He saidit has gotten a lot better. He said the Fargo PublicSchool District surveys its teachers when they haveprofessional development days and between 85 and90 percent of the teachers indicate that the profes-sional development days are worthwhile. He said themajor frustration expressed by teachers is that theydo not have the time to follow through. He said as adistrict, he does not mind being held accountable forhow that time is used.

In response to a question from RepresentativeDelmore, Dr. DeRemer said he would envision this asa multistep process. He said a district needs todevelop with its teachers a plan for professionaldevelopment and that plan should be developed ayear in advance. He said districts need some extradays at the beginning of the year. He said there is areal concern with the new teachers coming into thesystem. He said we keep implementing newcurriculum and then we get new teachers and there isabsolutely no process for training these people beforethey start the first day of school. He said we need tohave those new teachers a week in advance of theschool year. He said that is especially true of theteachers at the elementary and middle school levels.He said they also need time during the year and thoseoccasions need to involve early release. He saidafterschool sessions do not work well for people. Hesaid there is no research indicating that afterschoolsessions are effective. He said there is a lot ofresearch indicating that afterschool sessions are noteffective. He said he is concerned about imposingthe amount of instructional time that schools shouldprovide. He said he believes that the 173 days andthe 5.5- to 6-hour requirements should be strictlyimposed for classroom instruction and nothing elsesuch as pep rallies, etc. He said he also believes thatthe use of a schoolday is a local decision and that theLegislative Assembly should not be dictating how aday should be used. He said the LegislativeAssembly should limit itself to setting the number ofstatutory days.

Representative Sitte said her daughter justreceived an offer to teach in Phoenix and if she hadtaken the position, she would have had to be there onJuly 28. She said first-year teachers are given awhole week of professional development. She saidno extra pay was involved. She said it was justexpected that the new teachers show up. She said

No Child Left Behind 16 September 9-10, 2004

she wonders what would prevent a district in NorthDakota from requiring the same.

Dr. DeRemer said that is what is happening now.He said we are asking a lot, especially of new teach-ers. He said they are just getting out of college andwe are asking them to give up their summer jobincome to come into the school system and spendthat amount of time. He said we should have someallocation for the individual to do that. He said Fargois starting to do that with their own district funds. Hesaid it should be part of the overall expectation andnot based just on individual districts.

With the permission of Chairman Kelsch, Mr. KeithJacobson, Principal, New Salem High School,presented testimony regarding the NCLB Act. Hesaid what he has heard today is what he trulybelieves. He said this is how we should be able towrite a state plan for the NCLB Act. He said weshould be able to tell the federal government what willand will not work in North Dakota. He said we shouldnegotiate with the federal government. He said hehas not been a proponent of opting out of the NCLBAct because of the money that the state receives forTitle I. However, he said, if we have to get tough,then we have to get tough. He said this is how wesolve the problem. He said we need to provide inputto DPI so they can put things in place and offer theplan where it is at.

TESTIMONY BY DEPARTMENT OFPUBLIC INSTRUCTION STAFF

At the request of Chairman Kelsch, Mr. GregGallagher, Director of Standards and Achievement,Department of Public Instruction, presented testimonyregarding the NCLB Act, attached as Appendix I. Hesaid his written testimony lays out various types ofevidence as to what constitutes a valid and reliableaccountability system. He said that system must bebased on standards and on assessments that look athow well students do against the standards. He saidthat system must also make certain that the assess-ments themselves are valid and reliable and mustthen produce reports based on fair, valid, reliablerules governing how well schools do, how well schooldistricts do, and how well the state as a whole does interms of meeting those standards. He saidthroughout the text there are references to core datapoints addressing the number of students who tookthe assessments this year and how they did. He saidhis testimony also references the fundamentalelements of the NCLB Act which set forth those thingsa state is responsible for providing in terms of thequality assurances. He said throughout the text, thereare references to web sites that direct one to theoriginal documents. He said the testimony alsoincludes a summary of what DPI sees happening inNorth Dakota. He said on page 7 of his testimony,there is a chart that summarizes the status of schoolidentification and their adequate yearly progress this

year, as compared to their adequate yearly progressduring 2002-03. He said this year 406 schools metadequate yearly progress, 45 schools did not meetadequate yearly progress, and 35 schools had insuffi-cient data with which DPI could make adetermination. He said his testimony also includesthe rules governing how the adequate yearly progressdetermination is made. He said DPI has prepared aninstructional guide governing the interpretation ofadequate yearly progress reports.

Mr. Gallagher said his testimony also sets forth theprotections that are built into the plan to ensure thatno school is identified unless DPI can say with greaterthan a 99 percent assurance that the school did notmeet adequate yearly progress. He said if DPIcannot say with more than a 99 percent assurancethat the school did not make adequate yearlyprogress for the current year, DPI then rolls up twoyears' worth of data. He said if after doing a review,DPI still cannot say with a 99 percent assurance thatthe school did not make adequate yearly progress,DPI rolls up three years' data. He said if DPI stillcannot say with a 99 percent assurance that theschool did not make adequate yearly progress, DPIuses Safe Harbor. He said that allows for a reductionof the subproficient students. He said if after DPI stillcannot say with a 99 percent assurance that theschool did not make adequate yearly progress, DPIemploys a special rule available to Title I schools. Hesaid in some instances, schools will go through fivelevels of review prior to an identification occurring.

Mr. Gallagher said the remainder of the testimonyaddresses the future. He said included in that will bea study effort and the 25-member DPI accountabilitycommittee that will look at every aspect of the state'saccountability system.

Mr. Gallagher said on page 12 of his testimonythere is a compilation of the student performance datafor the last three years. He said it compares the first-year scores with last year's scores and this year'sscores. He said we are seeing a steady reduction inthe number of our lowest-performing students. Hesaid that is good. He said we are likewise seeing ageneral upward movement of student performance.He said that too is good.

Mr. Gallagher said pages A2 and A3 of the testi-mony take the performance data and break it out sothat one can see the composite scores and the scoresof the subgroups. He said the data shows anincrease almost across the board in the areas ofreading and math. He said that steady improvementin student performance scores is exactly what theywant to see. He said the special education studentshave shown a remarkable increase in performancethis past year. He said we are seeing improvedassessment practices for students with IEPs. He saidwe are also seeing greater use of accommodationsand a higher use of the alternate assessments.

No Child Left Behind 17 September 9-10, 2004

Mr. Gallagher said on page 17 of his testimonythere is a listing of the public schools and theiradequate yearly progress status this year. He saidthe DPI web site contains the specific adequate yearlyprogress report of any school in the state.

In response to a question from RepresentativeSitte, Mr. Gallagher said he has no recollection ofreceiving a release of information from the operatorsof the www.schoolresults.org web site. He said DPIdoes release all of its information to the United StatesDepartment of Education.

Representative Sitte says the web site claims to bethe official web site for NCLB statistics and it is spon-sored by the Education Commission of the States.

Representative Kelsch said it is possible that notall of the data is yet incorporated.

In response to a question from RepresentativeDelmore, Mr. Gallagher said insufficient data meansthat the school is so small that we cannot report onhow well it is doing. He said even in the larger schooldistricts, sometimes not all subgroups can bereported. He said not too long ago the board of asmall district was asking to see its numbers. He saidDPI could not release the data and neither could theadministrator because under the Family EducationalRights and Privacy Act that would have been arelease of information that could have led to the iden-tification of a student. He said that particular districtmight by next year be able to roll up enough data tobe able to have it available. He said when there is alimit, which for us is 10, the data cannot bereleased--not to parents, not to school boardmembers, not to the public.

In response to a question from RepresentativeDelmore, Mr. Gallagher said his testimony indicatesthat there has been a net reduction of one district thatdid not meet adequate yearly progress. He said ofthose that have been identified for two or more years,there has been a drop of three in the number ofschools in program improvement. He said the totalnumber is 20 at this point.

Mr. Gallagher said Appendix C of his testimonyidentifies what is happening in our schools. He saidwhen DPI does its annual adequate yearly progressreview, it uses 41 indicators per school. He said if aschool misses any one indicator, it is identified as notmaking adequate yearly progress. He said the lawdoes not reference "failing" adequate yearly progress.He said the law uses the phrase "did not meetadequate yearly progress." He said we have lessthan 500 schools. He said we are therefore looking at20,000 indicators. He said the report in Appendix Cof his testimony identifies reading and mathematicsoverall within each of the subgroups. He said the firstcolumn indicates the number of schools that reachedthe level needed to meet adequate yearly progress.He said we have 368 schools that reached orexceeded the objective and therefore met adequateyearly progress. He said the next column indicates

that there were 59 schools below the objective butthey were protected because of the state's reliabilitytest--the binomial distribution. He said DPI could notsay with 99 percent assurance that those schools didnot meet adequate yearly progress and, therefore,they are considered to have met adequate yearlyprogress.

Mr. Gallagher said the next column indicates thatthere were three schools which were below the99 percent confidence level and so multiple years ofdata were rolled up for them. He said based on that,all three schools made adequate yearly progress. Hesaid the following column indicates the number ofschools that were protected because of Safe Harborprovisions. He said these schools showed significantimprovement over the previous year and even thoughthe schools were below the objective, they were stillable to show a net reduction of 10 percent in thegroup of subproficient students. He said this showsthat a school can be below the objective, showimprovement, and still be deemed to have metadequate yearly progress.

Mr. Gallagher said for Title I targeted assistanceschools, there is an additional review. He said in that,DPI looks only at the Title I students. He said if thosestudents met or showed the expected improvement,the school is deemed to have met adequate yearlyprogress. He said the next column addresses theschools that did not meet adequate yearly progresswhen one looks at the composite score in reading.He said the next two columns include those schoolswith insufficient information. He said even thoughsuch data cannot be reported, of those schools thatwere insufficient, 24 of them were above theobjective. He said five would have been below theobjective but because their numbers are too small,DPI cannot report such. He said 18 cannot bereported out because of Family Educational Rightsand Privacy Act. He said that covers our 486 schools.

Mr. Gallagher said the NCLB Act requires schoolsto have 95 percent of their students participating inthe assessments.

Mr. Gallagher said the information presented isbased on approximately 23,300 students. He saidabout 2,100 students are not included in the calcula-tions. He said the noninclusion could be for a varietyof issues and DPI is currently ensuring that thesestudents are accounted for properly. He said DPIwants to ensure that a school's adequate yearly reportstatus is based on as comprehensive a list of studentsas possible. He said he can report that this far DPIhas found no reason to be concerned about the 2,100students.

Mr. Gallagher said Appendix E in his testimony is aworking agenda that DPI has put together to addressthe long-term accountability study and the use of theaccountability advisory committee, which DPI firstreferenced in testimony during the March 2004meeting of the interim No Child Left Behind

No Child Left Behind 18 September 9-10, 2004

Committee. He said the agenda will give people asense of the scope and the areas in which such anadvisory committee must engage itself. He said theaccountability system for the state is bigger than theadequate yearly progress plan. He said it is anetwork of important components that constitute aneducation system. He said the first is the clarity andquality of our content standards. He said the secondis the clarity and accuracy of our achievement stan-dards. He said the third is the manner, the quality, thereliability, and the validity of our assessments and ofthe assessment system in general for both regularassessments and alternate assessments. He said wealso need to be concerned about how all those gettied together within meaningful and fair rules abouthow schools are evaluated to determine whether ornot they have met adequate yearly progress, asdefined in the law and in its regulations. He said thecommittee will also have to focus on how we continuethe ongoing improvement of the plan.

Mr. Gallagher said the plan that we have is that onwhich we must build. He said the future is unlimitedwith respect to which direction we go. However, hesaid, it will require everyone to take a thorough look atevery element of law and regulation, of best practices,and most importantly, data. He said when we makechanges, those changes must include an under-standing of the impact on all of those areas. He saidthe goal is to make the best policy decisions for thefuture.

Mr. Gallagher said the proposed agency for DPI'sadvisory committee makes liberal use of outsidespecialists. He said some are available to DPIbecause of their contracts with CTB/McGraw Hill. Hesaid included in that group are researchers, develop-ers, technicians, and the people who deal with thereporting aspects. He said it includes technical assis-tance from McRel in Denver. He said it involvespeople from the National Center for Improvements inEducation Assessments in Dover, New Hampshire.He said they have spent a great deal of time studyingwhat has been going on with accountability systemsacross the country and were instrumental in puttingtogether a sound and fair approach to determiningreliability. He said it also involves people from theNational Center for Education Outcomes in Minnea-polis. He said these are people who look at thespecial education laws and specifically at the impactof how we address the special education subgroup.He said how we go about putting forth a good balanceof policy has a lot to do with the value we place onevery individual student and about how we see ouraccountability system.

Mr. Gallagher said DPI's efforts to date have beenfocused on meeting the requirements of the law andof the regulations and to build a mechanism throughuse of an advisory committee that will make thesystem good, sound, and sustainable. He said that isa long-term commitment that will require everybody's

involvement. He said the rationale for putting togethera 25-member advisory committee is to build on theexpertise of the education community. He said DPIhas been blessed to have the insight and contribu-tions of educators from across the state for years. Hesaid hundreds of educators have participated. Hesaid DPI wanted to build on the existing advisorycommunities because of their expertise. He said DPIthen wanted to incorporate other stakeholder groupswho could come in, talk, and make considered recom-mendations regarding where we go.

Mr. Gallagher said this morning there was discus-sion about the state setting aside, cloaking, orremoving subgroups. He said that is an importantand value-laden question. He said that needs to beapproached as wisely as possible. He said that policysays everything about what we are as an educationcommunity or as a community concerned about itscitizens. He said the law requires that subgroups beincluded. He said that requirement is specificallyaddressed in the law and validated in the regulations.He said thus far the reporting of subgroups has beennonnegotiable. He said one of the premises behindthe NCLB Act is that we look at the improvement of allof our students and at whether or not we give equi-table service to all of our students. He said that iswhy the ESEA was crafted in 1965 and that is whythere has been a complete review every five to sevenyears after that. He said the principle that this advi-sory group will have to address is if we recommendthat we no longer consider subgroups, is it effectivelyremoving them from discussions. He said we thenneed to ask what an adequate yearly progress desig-nation means. He said this is part of what the advi-sory committee will have to address.

Mr. Gallagher said the adequate yearly progressdetermination has nothing to do with failure. He saidthe determination is a straightforward descriptivestatement of whether a school did not meet one of41 indicators governing adequate yearly progress.He said we cannot overlay a burden of failure. Hesaid the law does not state it in terms of failure. Hesaid what we are trying to accomplish with adequateyearly progress has everything to do with people'sperception of accountability and the role of the state inmaking the results known. He said there is nothing inthe law that cannot be altered. However, he said, ourproposed alterations must govern how we value theactivity that we are undergoing. He said the rules areset in place for a particular reason. He said a requestwas made governing the end values that are set forstudents. He said that should be studied. He said weshould look at whether an end value of 30 should beused and we should look at what protection that offersour schools. He said there are certain things thatshould be considered. He said when DPI did therollup last year, it found that the binomial distributionusing the reliability test in fact protected more schoolsthan did an end value. He said we would have had a

No Child Left Behind 19 September 9-10, 2004

higher rate of identification with an end value of30 than we did with the binomial distribution.

Mr. Gallagher said conversely there wouldprobably be a higher rate of protection if an end valuewas set at 30 for the subgroups. He said the binomialdistribution would still consider smaller subgroups.He said we absolutely have to take a look at theimpact of 25, 30, 35, 40, etc. He said we need todetermine how that line will be drawn.

Mr. Gallagher said DPI can put anything into aproposal. He said a March 31 letter to the UnitedStates Department of Education was an attempt to puttogether all of the movement they saw in this last yearon the regulations that the United States Departmentof Education made.

Mr. Gallagher said a recommendation was madethat we go to 5 percent for special education students.He said the fact is that this year, for the first time, wejust assessed a total of 1 percent of our population.He said we have not gone above the 1 percent interms of the number of students actually administeredthe alternate assessment. He said the regulations arewritten not by the total number assessed but by thetotal number whose proficiency is acceptable.

Mr. Gallagher said when an advisory committeetakes a look at an issue such as an end value, it hasto deal with a very critical fairness issue. He said if anend value is set at 30 and your school district has 29,you will not be reported out. He said that district hasno accountability with respect to what adequate yearlyprogress implies. He said if the neighboring district10 miles down the road has 31 students, and thatdistrict does get identified, we need to ask ourselveswhat constitutes fairness. He said what is fair hasbaffled people for years. He said the reason that DPIuses a binomial distribution is because a confidenceinterval applies a statistical rule that introduces theeffect of accountability across the board. He saideverybody has exposure. He said it is appliedequally, while offering protection in certain circum-stances. He said we had one school this year thathad no student proficient out of 13 and yet the schoolmet adequate yearly progress. He said statisticallyDPI could not make the call that the school did notmeet adequate yearly progress. He said that was theproper call because it was based on statistics.

Mr. Gallagher said by the year 2014, the expecta-tion is that all schools will meet adequate yearlyprogress. He said if you institute an end value, youwould have those that are accountable and those thatare not. He said that is a tough call. He said youreally have to sift through the data and think itthrough. He said that is why the advisory committeeis set up as it is--so they can have the very best dataand sift through it--and then make the recommenda-tions they believe are necessary. He said DPI has aresponsibility to administer the law and the regula-tions. He said his actions are governed by fairness,

justice, and what he believes is aligned to the law andthe regulations.

Representative Delmore said some of us whounderstand adequate yearly progress also understandthat it does not mean failure. To the public, however,she said not meeting adequate yearly progressmeans failure. She said if schools or school districtsdo not meet adequate yearly progress, there are rami-fications in the NCLB Act that people associate withfailure.

Representative Delmore said DPI still needs inputfrom people. She said as a classroom teacher sheasks her students at the end of the year and some-times in the middle of the year what she did well. Shesaid she has taught for a long time. She says sheknows a lot about education but she does not knoweverything. She said she wants to know what can bedone by legislators, teachers, and school boardmembers to provide input regarding what they thinkabout the Act. She said she wonders how they cangive DPI input that will make a difference in the thingsthat they as the people in the trenches see every day.

Mr. Gallagher said we have to be consistentlyclear with language and about what this law requires.He said we also have to confront the press when itmisclassifies and mischaracterizes the law and espe-cially when it uses inaccurate terms such as thefailure of a school. He said school improvementunder the school accreditation system has beenaround for years. He said school improvement hasnever been termed a failure. He said it has beencalled a challenge. He said the NCLB Act sets acommon standard for how we view program improve-ment.

Mr. Gallagher said by 2014 everyone is expectedto meet adequate yearly progress. He said we haveseen gains. He said we have some schools that areclose to the 100 percent goal right now. He said wehave seen some schools make very nice, even hugeimprovements. He said even if we are still fallingshort, we need to ask what we as educators feelabout ourselves. He said we are about improving andlearning. He said there is no shame by unveiling thefact that we have work to do with any particularsubgroup of students. He said people have referredto "halls of shame." He said that phrase isgrotesquely wrong. He said this is all about identi-fying where we need to improve.

Mr. Gallagher said the law increased funding byabout 25 percent. He said in order to accommodateadditional levels of program improvement, we made acommitment to put additional funds into the programs.He said whether or not we have sufficient funds is amixed discussion. He said we have some schoolsthat do not use their full funds. He said some schoolswould like to be able to use their funds differently. Hesaid as long as we have students who have notreached proficiency, we need to keep working. Hesaid we need to be professional about it and

No Child Left Behind 20 September 9-10, 2004

understand it that way. He said this is about reportingand committing and getting better.

Mr. Gallagher said sometimes it takes an account-ability system to bring the awareness to ourselves.He said as a profession we need to look at the dataand look at ourselves and be professional enough tosay maybe we can do better. He said so manypeople have referenced finally seeing the gaps in theircurriculum. He said it takes a real dedication tobroaden our own skills and to broaden how wecommunicate to the variety of students that we have.He said differentiated learning is the theme of thefuture. He said we have to accommodate everyone'sunique method of learning and unique method ofteaching or administration.

Representative Sitte said she was reflecting on theadequacy lawsuit. She said North Dakota, like abouttwo-thirds of the states, is facing an adequacy lawsuit.She said Kansas spent $2.6 billion on kindergartenthrough grade 12 education and after losing itslawsuit, Kansas will have to come up with another$1 billion to fix its system. She said New York spent$14.4 billion on kindergarten through grade 12. Shesaid Governor Pataki proposed an increase of$4.5 billion and now that the state has lost the lawsuit,its education system is in the hands of three judgeswho will be determining a huge tax increase that thelegislature will have to fund. She said in an articleabout Alaska it was stated that the standards move-ment brought adequacy back to the forefront andcreated the judicially manageable standards uponwhich these cases could be determined. She said wehave trusted Mr. Gallagher and DPI to develop thestandards for us. She said our standards pretty muchmimic the national standards. She said we have putthese standards in place. She said the article goeson to state that for the last 15 years, adequacylawsuits have returned and have been successful inabout two-thirds of the cases. She said the articlealso states that as we continue to embrace standards-based reforms, we can expect to see more lawsuitson adequacy grounds. She said the article providesthat it takes additional funding in the range of 15 to 40percent to meet the mandated education standards.She said North Dakota is facing a lawsuit. She saidthe Legislative Assembly had very little input into thestandards that DPI put into place. She said DPI hasmaintained that the standards were put into place withbroad input from teachers, but who really knows. Shesaid it is almost as if we have been set up for thisenormous lawsuit.

In response to a question from RepresentativeSitte, Mr. Gallagher said he is not an expert onadequacy lawsuits. He said he expects that for yearsto come people may make reference to the standardsand look at variance between schools that have suffi-cient resources versus those that have insufficientresources and ask if there is a sufficient correlation inthe ability of students to reach the state standards.

He said DPI has not set up anybody in terms of stan-dards. He said our standards represent the consid-ered reflection of associations from across thecountry, the teachers of our state, those whoprepared all the drafts from the first to the final ones,and those who reacted to the documents, as well asthose who have used the standards over the yearsand offered their suggestions for the improvement ofthe standards. He said drafts will come and drafts willget better. He said that is our job.

Mr. Gallagher said we meet our goal of preventingilliteracy by building literacy. He said you do that bydefining a common core, a common definition, and acommon set of skills and knowledge for students tohave. He said whatever any one group does toadvance a lawsuit is within their right. He said thatdoes not mean that the state should step back fromwhat it needs to do, i.e., to set a clear course for whatacademic achievement means. He said regardless ofwhere people stand on the NCLB Act and onadequate yearly progress, the articulation of stan-dards that has occurred has been because of thepeople who have taken to heart what education is allabout. He said the standards we have today aremore specific and better than what we had a decadeago. He said in five years they will be better yet.

At the request of Chairman Kelsch, Dr. Sansteaddistributed a copy of a letter dated March 31, 2004,from DPI to the United States Department of Educa-tion and an August 2004 reply from the United StatesDepartment of Education. The letters are attached asAppendix J. Dr. Sanstead said DPI requested sixitems. He said the United States Department ofEducation granted flexibility on four items. He saidone of the items was excepted but DPI was told that ifit moved in a more deliberate fashion to address theconcerns of the Department of Education, it wouldprobably be considered and allowed in the future. Hesaid with respect to the sixth item, a letter was justreceived and the United States Department of Educa-tion indicated that the proposal would not be acceptedbased on the advice of legal counsel. He said itinvolves a technicality in the definition of "rural."

Chairman Kelsch recessed the meeting until8:00 a.m., Friday, September 10, 2004.

At the request of Chairman Kelsch, Mr. Gallagherpresented testimony regarding the NCLB Act. Hesaid it is the role and function of the DPI accountabilityadvisory committee to study the state accountabilitysystem's efficacy, to review all findings, to study theimpact of each provision of the state accountabilityplan, and to recommend any changes to the Superin-tendent of Public Instruction. He said this processensures a thorough and considered review of allelements of the state's accountability plan.

Mr. Gallagher said over the course of the last yearand a half, DPI staff have presented their best under-standing of the law and regulations. He said DPIstands behind all of its testimony.

No Child Left Behind 21 September 9-10, 2004

Mr. Gallagher said yesterday there again arosean issue regarding cohort testing. He said cohorttesting is recognized as an acceptable secondaryindicator but not as a replacement for status testing.He said Florida uses cohort testing as a secondaryindicator. He said the status approach, i.e., the sameapproach that is used in this state, is also used inFlorida. He said during this upcoming legislativesession, DPI will ask for $1.2 million to provide anadditional year of testing beyond what we alreadyhave in place. He said this will in and of itselfadvance cohort testing. He said cohort testing has aproper place. However, he said, it is not the appro-priate model for determining adequate yearlyprogress under the regulations. He said advancing acohort testing model will require additional dollars.

Mr. Gallagher said there was a request to raisethe 1 percent special education cap to 5 percent. Hesaid raising the cap has been requested by otherstates and to date the United States Department ofEducation has been reticent to move away from the1 percent cap. He said this is an area in which thereneeds to be evidence in order to make the case that araise should be considered. He said we also need tounderstand that if we agree that we should have a5 percent cap, we are in effect stating that half of ourspecial education students are incapable of beingtested.

Mr. Gallagher said since February 2004, DPI hashad a committee of special education teachers anddirectors from across the state looking at this issue.He said they recommended that we not change thecap at this time, but rather continue to consider thefuture data. He said we are far below the 1 percentcurrently permissible.

Mr. Gallagher said whether we should use an endvalue or binomial distribution should likewise be stud-ied. He said in this last year 17 additional states havesought the cover of a system like the binomial distri-bution that North Dakota uses. He said North Dakotais also the only state that was granted the opportunityto put protections in their attendance and graduationrates.

Mr. Gallagher said Safe Harbor is a growth model.He said a number of schools in this state were notidentified as not meeting adequate yearly progressunder the Safe Harbor provisions. He said they mighthave made sufficient gains, even though they did notmeet the proficiency levels.

Mr. Gallagher said a school is a cohort. He said itis a growth model itself. He said adequate yearlyprogress can be based on a student, a class, or aschool. He said ultimately and ideally it would be niceto accommodate all three levels.

Mr. Gallagher said exploration of the Nebraskastate plan is the kind of issue that needs to be putbefore the state accountability advisory committee.He said the system is much more than just the70 pages of the Nebraska state plan.

Mr. Gallagher said testimony was givensuggesting that schools should be given more thanfour years within which to graduate students. He saidthat is not permitted under the rules. He said DPIargued that such should be included in a student'sIEP. He said our ELL students ideally but not univer-sally have study plans that address this. He said thisissue is part of an intricate process of negotiation withthe United States Department of Education.

Mr. Gallagher said with respect to the funding ofthe NCLB Act, the Government Accounting Officestudy is still to be completed. He said DPI believesthat if there is to be a study of the impact and cost ofthe NCLB Act, it must actively and intimately connectschools in the collection of the data. He said it willrequire more than DPI can ever provide in partbecause the decisionmaking process at the local levelis not something to which DPI is privy.

Mr. Gallagher said yesterday it was insinuatedthat DPI tinkered with or toyed with the process bywhich cut scores for the state assessments weredetermined. He said in the July 8, 2003, testimony ofDr. Gary Gronberg, there was specific focus on howstandards were set and how cut scores were deter-mined. He said the standards-setting report was putinto evidence. He said the model that was used wasdeveloped by CTB/McGraw Hill. He said it is a repu-table model for determining how to set a cut score.He said the model brought together 130 teachers toreview the test item by item and then it utilized athree- phase discussion and voting process. He saidthere was debate, interaction, and voting. He saideverybody in that room saw the same data and under-stood the process. He said the whole goal was tobuild consensus.

Mr. Gallagher said each teacher who comes intothat role brings along his or her own expectations andexperiences regarding what is practical in the realworld. He said nobody sat there and required anidealistic score. He said when they drew the line,they drew the line.

Mr. Gallagher said when specifically asked,80 percent of the participants said that they couldsupport the scores that were reached as being neithertoo high nor too low. He said it has been stated intestimony that DPI was disingenuous in how theformat was presented. He said it was also indicatedthat the teachers did not know what they were doing.

Mr. Gallagher distributed a copy of the notes thatthe teachers had been given. He said these notesshow that DPI walked through the building blocks ofits accountability system. He said they walkedthrough how adequate yearly progress is determinedand how the school districts would be identified. Hesaid the point was made that DPI somehow held themback until they got the "right" results. He said makingsuch a statement shows a lack of understandingregarding the standards-setting process. He said DPI

No Child Left Behind 22 September 9-10, 2004

clearly identified what was going to happen after thesetting of cut scores.

Mr. Gallagher said no one in DPI saw any of theproposals put forth by the coalition until they werepresented to the interim committee yesterday.

Mr. Gallagher said yesterday he put forward in histestimony 10 principles and 10 substantial areas inwhich study must occur. He said there are a widevariety of areas in which both the law and the rulesare very clear. He said in the future we need toreview each element of the state accountability planand determine if changes are needed. He said how acommittee to perform this function is formed gets tothe heart of the issue today. He said the coalitionrecommended a committee consisting of two indi-viduals from each of the three interest groups, sixlegislators, and a member of the Governor's staff. Hesaid DPI has proposed bringing in people who havetrue expertise and who have worked very closely withthe standards and assessment development system.He said the DPI advisory committee includesmembers from three separate and already existingcommittees such as IDEA, the Title I Practitioner'sCommittee, and the Standards, Assessments, Learn-ing, and Teaching (SALT) team. He said DPI hasalso included a member of the Indian Affairs Commis-sion. He said parents and business people areincluded as well.

Mr. Gallagher said what is being talked about isnot advice. He said it is governance and control. Hesaid the decision as to what is submitted to the UnitedStates Department of Education within the state'saccountability plan is that of the Superintendent ofPublic Instruction. He said state law specifically saysthat the Superintendent is responsible for the assess-ment of students. He said furthermore it is the Super-intendent who signs off on all such matters, includingthe assessment system. He said a governancecommittee is different from an advisory committee.He said in an advisory committee any recommenda-tion flows to the Superintendent of Public Instructionfor his consideration. He said any request forincreased participation on the advisory committee bythe interest groups needs to be directed to the Super-intendent.

Mr. Gallagher said DPI has always had a prefer-ence for large advisory committees. He said theintent is that this one would be a lively committee. Hesaid there is a lot of work that this committee will beexpected to do, not the least of which is a completeand thorough study of each element of the state'saccountability plan.

Mr. Gallagher said the issue before this interimcommittee is not who should be on an advisorycommittee, it is with whom does the responsibilityrest. He said we need to find the proper balancebetween the branches of government. He said theDPI advisory committee already has two members ofthe Legislative Assembly appointed by the Legislative

Council. He said that allows for proper communica-tion without creating a concern regarding the interplayof the executive and legislative branches.

In response to a question from Senator Cook,Mr. Gallagher said it is clearly understood within therules of the ESEA that any provisions of a state arethe defining factor. He said state law is state law. Hesaid if the Legislative Assembly would pass a law, it ishis understanding that the law states the policy andthat the policy would stand. He said it is always theprerogative of the Legislative Assembly to make suchdeterminations. However, he said, it would be betterto ask if the Legislative Assembly is the best vehicleto do so or is there a better vehicle to study a fairlycomplicated matter and conduct a concerted reviewbased on data. He said we need to ask what is thebest governance approach. He said it is DPI'sperspective that there already exists an advisorycommittee that can work through these issues andreach an understanding. He said this method willensure that the state's policy will be well served andthe outcome will be good.

Senator Cook said while he appreciatesMr. Gallagher's answer, he said we need to be able toask Dr. Sanstead whether in his capacity as theSuperintendent of Public Instruction he believes thatthe Legislative Assembly sets the policy regarding theNCLB Act. Senator Cook said he believes that consti-tutionally the Legislative Assembly is in charge of poli-cies that affect the children of this state. He said weneed to ensure that we are all on the same page.

Mr. Gallagher said the Legislative Assembly setsthe education policy for the state. He said we alsohave a governance structure that leaves to the Super-intendent of Public Instruction many of the administra-tive responsibilities associated with enforcement ofthe federal law. He said that is a clear understanding.He said despite all that has been said about theNCLB Act, nothing has changed. He said the statestill determines its own destiny. He said the differ-ence is that the NCLB Act has a large amount ofmoney attached to it. He said, as with any grant, aperson need not feel the obligation to seek that fund-ing. However, along with the funding there are stipu-lated conditions or provisions. He said it is always theprerogative of the state to determine that we want nopart of it and to reject the grants. He said the statealways has its sovereignty. He said if, however, weaccept the funds, we also accept their conditions. Hesaid there is nothing that he believes cannot beworked through with a good healthy dose of consid-ered review.

In response to a question from RepresentativeDelmore, Mr. Gallagher said in the July 2003 meetingof this committee, he put into testimony the selectionprocess and the actual nomination forms for theselection of those teachers who were involved in thesetting of the cut scores. He said two models werebeing followed. He said the first model allowed DPI to

No Child Left Behind 23 September 9-10, 2004

access the many teachers who had participated in thedrafting of the content and achievement standards.He said these people had an intimate understandingof the standards and knew the nuanced issues thatwould inevitably come about. He said DPI also askedadministrators to nominate their best teachers for thisrole. He said for something as important as thesetting of the cut scores, the number of nominationsfrom administrators was quite low. He said hebelieves that the importance of setting the cut scoreswas not fully understood or appreciated. He said thathas changed and there will be a keen interest in theprocess this time. He said DPI produces all of thesedocuments with the teachers of this state. He saidwhile there is discussion about the quality of the docu-ments, it is the belief of DPI that having the involve-ment of the state's teachers will always lead to goodresults.

Mr. Gallagher said there is preparatory work to thisand it does belong to some degree to the advisorycommittee. He said it always will involve the group oftechnical advisors. He said North Dakota hascontracted with a number of quality individuals fromaround the country to serve in this capacity. He saidthese include Dr. Thomas Fisher who presented testi-mony at the last meeting of this committee; Dr. JamesImpara and Dr. Barbara S. Plake from the Buros Insti-tute for Assessment, Consultation, and Outreach inLincoln, Nebraska; Professor William A. Mehrens, anationally recognized assessment expert from Michi-gan; and Dr. William J. Erpenbach from Wisconsinwho at one point headed the accountability office inthat state. He said Dr. Erpenbach is also one of theteam members that evaluated the state accountabilitysystem in March 2003. He said there are others withwhom DPI has also contracted in case the need fortheir services arises.

Mr. Gallagher said the role of these individuals isto offer dispassionate technical advice regardingassurance of the best quality and best process. Hesaid DPI listens to these individuals very carefully andthen balances that with what fits well for NorthDakota.

Representative Sitte said she started to thinkabout the enormity of what teachers face. She saidwe need to imagine being a first-year elementaryteacher hired two weeks before the start of the schoolyear. She said we need to imagine what it takes inthat short period of time to organize the classroom,learn the curriculum, and get the children on task. Inaddition, she said, North Dakota hands out to each ofthese teachers North Dakota standards andbenchmarks--content standards in dance, drama,music, visual arts, English language arts, mathemat-ics, library technology literacy, foreign language,physical education, science, and social studies. Shesaid once a teacher gets through all of the contentstandards, the teacher must take a look at theperformance standards in each of those areas. She

said then the teacher must move on to the achieve-ment standards in each of those areas. She said thenwe wonder why our teachers are having such a diffi-cult time grasping what is expected of them. She saidMr. Burly indicated that when he graduated fromcollege in 1974 he was not really told what to teach.She said she graduated in 1973 and still has hercourse of study from Superintendent M. F. Peterson.She said it contains sample lesson plans. She saidour system does not have to be as complex as DPIand Mr. Gallagher have made it.

Representative Sitte said Virginia, under thenGovernor George Allen, decided to dump their stan-dards that were drafted by McRel. She said our stan-dards were drafted by McRel. She said McRel is theMid-continent Regional Education Laboratory andwas developed by the United States Department ofEducation. She said the standards are all outcome-based education developed under Goals 2000. Shesaid it has not changed since the Clintonadministration. She said Governor Allen and theVirginia legislature decided to develop content-basedstandards.

Representative Sitte said she compared themathematics standards of Virginia to North Dakota.She said the Virginia standards state that childrenshould add and subtract to 10 in the first grade and to18 in the second grade. She said children shouldknow how to add and subtract two-digit numbers up to99 in the third grade. She said the Virginia standardsare very content-oriented. She said there are distinctdifferences in philosophies of education. She saidMr. Gallagher and the people we heard fromyesterday would propose to place children in aninvigorating learning environment with exciting thingsaround them and assume they will naturally pick it allup. She said there is another philosophy of educationthat says we are nothing more than trained dogs andif a lesson is put out there and the students arerewarded or zapped, they will learn. She said shediscards both philosophies because she is aclassicist. She said she believes in a strong liberalarts education. She said she wants every child in thisstate to be able to understand and use algebra in hisor her daily life. She said she wants every child in thisstate to be able to read at grade level, so that childwill not have an enormous leap between graduatingfrom high school and enrolling in college. She saidshe believes in scientific-based inquiry when it comesto some subjects such as science. She said she doesbelieve that a good teacher will use an inductivemethod of reasoning as opposed to all drill and prac-tice. She said she also knows that if one does nothave automaticity and certain skills, students will besorely lacking when they get to the high school level.She said when DPI is throwing its philosophy ofeducation at legislators, as though it is the onlyphilosophy, she becomes upset. She said legislatorshave given DPI free rein and DPI has taken us down

No Child Left Behind 24 September 9-10, 2004

the wrong path. She said we then wonder why NorthDakota students do not score well and why we needsupplemental services. She said the reason is thatwe have not been following the classical approach toeducation that other states have chosen to provide.She said if North Dakota would join in the classicapproach to education, it would save us all a lot ofmoney and trouble.

Mr. Gallagher said the classic approach to educa-tion is to be valued. He said many of the values thatRepresentative Sitte holds are shared by him.

Representative Kelsch said this committee hasbeen hearing the same concerns from the samespecial interest groups time after time after time. Shesaid she saw in the Bismarck Tribune a quote byDr. Sanstead to the effect that he was just "taking abullet for Bush." She said she was irate. She saidlegislators are taking the bullet for Dr. Sanstead. Shesaid this is not a political football. She said this isabout the children of North Dakota. She said she isbothered by the fact that legislators have heard fromthese interest groups for two years. She said shewants to know what DPI has done about theirconcerns.

Representative Kelsch said not every request orsuggestion that was made yesterday is out of therealm of being doable. She said the coalition hadsome very good proposals. She said perhaps someof their suggestions could be incorporated. She saidsome of the suggestions might not have been quiteright. She said she wondered if the coalition could notsit down with DPI and find a compromise that couldbe offered to the United States Department of Educa-tion. She said we all need to make this work becausewe all want the best for our kids. She said we some-times lose that vision. She said the number onecomplaint about the NCLB Act is that the legislaturesin the country did not get involved soon enough. Shesaid legislatures were sold a bad bill of goods. Shesaid those states that are now in the best position arethose in which the legislature, the state department ofeducation, and the interest groups all worked togetherto form the best plan they could for their state. Shesaid none of the issues that were brought upyesterday were new. She said they have all beenheard before.

Mr. Gallagher said there have been various issuesof concern during the past two years. He saidyesterday he was given the first tangible proposal bythe interest groups. He said that was his first expo-sure to the proposal that there be an end value of 30.He said that is a good legitimate proposal and isworthy of study. He said this is the first time that astraightforward proposal has been offered. He saidthere have been statements of discontent anddiscomfort and frustration but no tangible proposals toaddress the matters.

Representative Kelsch said the reason the groupcame with a tangible proposal is because she asked

them to sit down together and work it out together.She said in hindsight she should have directed thatDPI be involved too. She said prior to that they hadbeen using piecemeal approaches and they were notgetting anywhere. She said when groups sit down,formulate proposals, and bring those to the Legisla-tive Assembly, there is a far greater chance thatsomething will be accomplished.

Mr. Gallagher said that is the role they see for theadvisory committee. He said that group will gothrough all the ideas and all the various elements andsort through what constitutes the best process. Hesaid the rollout of events happened as they occurred.He said the growing insight as to people's positionshave likewise developed over time. He said we needto build on a common vehicle which we believe is agood well-structured advisory team to have the finedetailed discussions of how these elements fittogether.

At the request of Chairman Kelsch, Ms. LaurieMatzke, Title I Director, Department of Public Instruc-tion, presented testimony regarding the NCLB Act.She said she was surprised by some of the commentsthat were made yesterday and some of the specificrecommendations that were offered. She said shewas also surprised by the misinformation that stillexists. She said she has made presentations to theNorth Dakota Council of Educational Leaders, theNorth Dakota School Boards Association, and theNorth Dakota Education Association. She said shesends out a monthly Title I newsletter in which sheaddresses all of the issues that have been raisedduring the past couple of days. She said she is notsure of what more she can do. She said all of DPITitle I policies, practices, and procedures focus on thebest interests of the schools and are designed toachieve the maximum flexibility for school districts.She said Title I funds can be used for ELL students.She said that has always been the case. She saidshe does not understand why individuals are sayingthat schools cannot do so. She said in May 2004 DPIheld two Title I workshops at each end of the state.She said using Title I funds for ELL programs wasone of the featured presentations. She said DPIdeveloped guidelines for schools that elect to do this.

Ms. Matzke distributed a document entitled Title IFast Fact Series, attached as Appendix L. She saidthere are rules that have to be followed. She said thedistricts of Jamestown, Grafton, and Fargo are thethree districts that are using their Title I funds for ELLprograms.

Ms. Matzke said similarly she does not know whatmore she can do to get the word out about supple-mental services. She said school districts, JPAs, andindividual teachers are qualified to apply for designa-tion as a supplemental service provider. She saidthat has always been the case. She said all theyneed to do is to complete the application. She said

No Child Left Behind 25 September 9-10, 2004

the only limit that the federal government places onthis is that school districts in program improvementcannot apply to be supplemental service providers.However, she said, individual teachers within thosedistricts may apply. She said in order for instruction tobe effective, it does need to be related to what goeson in a student's classroom. She said individualteachers in a student's school will be much better ableto align their afterschool tutoring with the services thatthe student is receiving in the classroom than will anoutside entity. She said the law requires that DPI gothrough a dissemination process once each year andissue an request for proposal. She said to date DPIhas had seven individuals seeking to become supple-mental service providers. She said DPI discussesthis option at every presentation it makes. She saidshe does not know why various teachers and schooldistricts are not applying to be supplemental serviceproviders. She said to date there are no schooldistricts on the DPI's supplemental service providerlist. She said there are a number of Internet-basedorganizations, including Sylvan and a university. Shesaid no schools and no teachers have applied to besupplemental providers. She said supplementalproviders do not have to meet the teacher qualityprovisions. She said they do not have to be certifiedteachers. She said they can be aides. She said thelaw is very flexible regarding who can work with whomin an afterschool program.

Ms. Matzke said another issue that had beenraised was the request to access funding a little bitearlier. She said there are actually two pots of moneyand she was not certain which one was being refer-enced. She said the state is required to set asidesome additional funds for schools in programimprovement. She said approximately $1.2 million issegregated for this purpose. She said schools thathave not been identified for improvement will not beallowed to access funds by the United States Depart-ment of Education. She said there would not beenough funds to go around. She said the wholepurpose is to help those schools that have been iden-tified as needing improvement. She said the UnitedStates Department of Education will not even allowschool districts to access those funds. She said thatis being challenged at this time by states.

Ms. Matzke said the second pot of funds requiresa district identified for program improvement to setaside 10 percent of their own funds. She said theUnited States Department of Education will now allowschool districts to use this pot of funds across theirdistrict, even in non-Title I schools.

Ms. Matzke said with respect to the issue of schoolchoice, we keep forgetting that the law measuresschools not students. She said many people mightdisagree with that and would prefer to have cohortmeasurement. However, she said, the law measuresschools and that is why when a school is identified for

program improvement, it is the right of every studentin that school to request a transfer.

Ms. Matzke said concerns about funding under theNCLB Act seem to deal more with how the funds aredistributed or accessed, rather than with the amountactually available. She said the NCLB Act hasprovided this state with a significant amount of federalfunds. She said the United States Department ofEducation bases the funding for school districts oncensus data. She said a state like North Dakota,which is losing population, does not fare well whencensus data alone is used. Consequently, she said,North Dakota is one of seven states that has askedthe United States Department of Education for awaiver permitting the use of free and reduced lunchcounts along with the census data to determine fund-ing. She said even at that, there are a number ofsmall districts that do not receive enough of an alloca-tion to fund a full-time Title I teacher. She said largedistricts have to deal with the targeting process. Shesaid under this, the districts have to go through anallocation process which determines exactly whichbuildings can be served and how much can beexpended in each building.

At the request of Chairman Kelsch, Ms. JanetWelk, Executive Director, Education Standards andPractices Board, presented testimony regardinghighly qualified teachers. Her testimony is attachedas Appendix M. She said the Education Standardsand Practices Board, together with the Governor'soffice, received a teacher quality grant. She said partof that grant was used to fund standards alignment.She said the Education Standards and PracticesBoard has aligned its standards and licensureprocess to DPI's accreditation process. She saidtranscript reviews occurred this summer with a view toletting teachers know whether or not they met thestandards for being highly qualified.

Ms. Welk said we have heard a lot about thisstate's high teaching standards and we have beentold that our standards are much higher than those ofother states. She said she selected 10 teachers froma group of 300 applicants and using the computer labat Horizon Middle School they proceeded to reviewthe requirements of all 50 states. She distributed adocument entitled ESPB - Teacher CertificationRequirements & NCLB 50 State Report, which is onfile in the Legislative Council office.

At the request of Chairman Kelsch, Mr. KurtHayes, Principal, Munich/Border Central, presentedtestimony regarding the teacher quality report. Hesaid the report addresses licensure types and require-ments, testing for initial licensure, major/minor credits,comprehensive degrees, middle school teachingrequirements, student teaching requirements, defini-tions of highly qualified for purposes of the NCLB Act,major equivalencies, national board certification, andteacher support systems.

No Child Left Behind 26 September 9-10, 2004

Representative Hunskor said the teachers in thefield are beginning to understand that the EducationStandards and Practices Board is trying to do every-thing it can to help the teachers become highly quali-fied. He said he knows of two Title I teachers, one inBottineau and one in Glenburn. He said they havemaster's degrees and they work with kindergartenthrough grade 12 students who are learning-disabled.He said they have bachelor's degrees in elementaryeducation, bachelor's degrees in mental retardationkindergarten through grade 12 with mathematics andreading certificates. He said these two teachers, afterJuly 1, 2006, will not be able to work with Title I ingrades 9 through 12, unless they have 32 semesterhours in one of the core subjects. He said after July1, 2006, they will also not be able to work withstudents in grades 7 and 8, unless they obtain amiddle school endorsement. He said these twoteachers have master's degrees in communicatingwith learning- disabled students. He said these arenot mainstream teachers. He said they are helpingthe teacher. However, he said, they are being toldthat they cannot help in science or in mathematicsbecause they lack a certain number of semesterhours. He said that is just not right.

In response to a question from RepresentativeHunskor, Ms. Matzke said she does not anticipateadditional flexibility from the United States Depart-ment of Education governing the issues addressed byRepresentative Hunskor. She said the state will bemonitored on its Title I implementation during the firstor second week of May 2005. She said that was justscheduled. She said last year that effort included theteacher quality provision. She said that was problem-atic because teacher quality is run out of a differentdivision at the United States Department of Education,not out of the Title I office. She said the bottom line isthat the NCLB Act separates out elementary, middlelevel, and high school teachers. She said the lawfirmly states that elementary teachers must haveelementary certification and that they cannot teachkindergarten through grade 12. She said high schoolteachers need high school certification and middleschool teachers need something in addition to theirelementary or secondary preparation. She said theEducation Standards and Practices Board has tried toput something together which would follow the law.She said Representative Hunskor commented thatthe two teachers about whom he spoke are not evenregular classroom teachers--they are supplementaryteachers. In fact, she said, Title I teachers are held toa much higher standard than even regular educationteachers because it is a Title I law. She said if a TitleI teacher is going to teach at the high school level,that individual will need a major in every subject to betaught.

Representative Hunskor said he understands whatthe law requires. However, he said, if these twoteachers decide to leave, the students will be hurting

because there will not be any way they can getservices.

Ms. Matzke said most Title I programs are stillelementary programs. She said all of our elementaryprograms have Title I teachers. She said about athird of our programs go to the middle school leveland about a fourth go to the high school level. Shesaid within the last month flexibility has beenincreased for the middle school Title I programs. Shesaid teachers will be given two years to work toward amiddle level endorsement. Consequently, she said,any teacher who has an elementary education degreeand wants to teach grades 7 and 8 may submit a planof study through the Education Standards and Prac-tices Board. She said the teacher will be given twoyears within which to complete the 10 hours of studyneeded for the middle level endorsement. She saidthe universities are doing a great job of offering onlineclasses to get those teachers through the processquickly.

Ms. Matzke said it is almost impossible for anelementary education major to go back and obtain asecondary degree and especially in every subjectarea they would hope to teach. She said if one is asecondary teacher, one can get a secondary gener-alist credential by having a major in English, science,or in social studies, along with some reading course-work. She said those individuals can teach Title I inany subject.

In response to a question from RepresentativeHunskor, Ms. Matzke said to address this issue onewould not deal with the Title I office but rather with thedivision that handles teacher quality issues.

With the permission of Chairman Kelsch,Mr. Dean U. Koppelman, Superintendent, DickinsonPublic Schools and Chairman of the Education Stan-dards and Practices Board, presented testimonyregarding the NCLB Act. He said as Ms. Welk indi-cated, the Education Standards and Practices Boardhas worked hard to craft a plan for this state that willmeet the requirements of the NCLB Act but will stillhave some common sense to the approach that weuse. He said if we had taken the literal view of thelaw, we would have had a very different situation inthis state. He said the portfolio system and the testingoptions, as well as provisions that credit those whohave experience in the field, appear to have workedwell. He said there might be some tweaking that maystill have to be done. He said they tried not to goabove the federal requirements, but they also tried notto lower the requirements. He said the EducationStandards and Practices Board has not discussedlowering the number of credits that is required for amajor. He said that should be a discussion betweenthe Education Standards and Practices Board and theState Board of Higher Education. He said there arenot very many majors that are awarded for only 24semester hours. He said that particular coalition

No Child Left Behind 27 September 9-10, 2004

recommendation would have been a reduction in whatis already in place.

Mr. Koppelman said every time the EducationStandards and Practices Board addressed compositedegrees, they did so with a rationale that theybelieved could be defensible if questioned about thedecision. He said much of the Education Standardsand Practices Board work was done with the knowl-edge that there would be another legislative sessionbetween its decisions and the ultimate implementationdate. He said adjustment can be made in the 2005session. He said the Education Standards and Prac-tices Board moved quickly to let teachers know whatwould be expected of them to become highly qualifiedby the June 30, 2006, deadline. He said staffing andprograms need to be looked at long before therequired deadline. He said teachers who need to doa lot of work have only one more summer left.

Mr. Koppelman said questions still exist as to howthe highly qualified requirements will be monitoredand enforced. He said in the past if a teacher was notqualified, points were taken off during an accreditationreview. He said he believes that DPI has the authorityto monitor compliance with the Act through theapproval process. He said there will be teachers outthere who will be teaching in an area in which theyare not highly qualified. He said we need to deter-mine how schools will be impacted. He said if foun-dation aid is going to be a factor, we need todetermine whether it will be reduced for all students inthe school or just for those being taught by the indi-vidual who does not meet the highly qualified require-ments.

In response to a question from Senator Cook, Mr. Koppelman said the biggest concern for adminis-trators is where they are going to find highly qualifiedteachers beginning in September 2006. He said lastyear two schools in the Dickinson School District didnot make adequate yearly progress. He said this yearthose schools did make adequate yearly progress.He said the district put out the notices as required bylaw. He said there was not one telephone call fromone parent regarding the status of either school.

In response to a question from RepresentativeWilliams, Mr. Koppelman said as a superintendent hefeels really good about where they are with the stan-dards. He said there is more concern about the abilityof administrators and school boards to staff thesmaller schools. He said the highly qualified statushas not been much of an issue.

At the request of Chairman Kelsch, SenatorDwight Cook presented a bill draft [50082.0100]relating to the compulsory school attendance law.Senator Cook said he asked that this bill be draftedbecause of the NCLB Act. He said the Act holdsschools and teachers accountable for the education ofstudents. He said it does not place a responsibility foreducation on parents nor on students themselves.

Senator Cook said if parents do not get their chil-dren to school, the parents have committed a felony.He said at this level the behavior does not get prose-cuted. He said he is proposing that the first time aparent fails to get the child to school, the parent wouldbe guilty of an infraction. He said the second offensewould be a Class B misdemeanor.

Senator Cook said in 1887 students were requiredto go to school until they reached the age of 14 andthat they had to be in school for at least six consecu-tive weeks.

In response to a question from RepresentativeWilliams, Senator Cook said we need to look at whatan appropriate cutoff age is for mandatory schoolattendance.

In response to a question from RepresentativeHunskor, Senator Cook said he attended a session ontruancy at a National Conference of State Legisla-tures Spring Forum. He said when he returned hevisited with both the superintendent of the MandanPublic School District and with the Mandan PoliceChief. He said they discussed truancy and theirconcern about how the law is enforced.

Chairman Kelsch said Senator Cook's bill draftpresupposes that a finding of truancy applies only to astudent who is absent without having been excused.She said a truant child is not one who has beenexcused by the school. She said if a student has amedical appointment and the school is notified, thatstudent is excused and therefore not considered to betruant. She said page 2, line 2, of the bill draftrequires that for a finding of truancy, the student mustnot have been excused. She said students may beexcused for a variety of reasons.

Representative Sitte said dropping the felonypenalty makes sense because it is not beingenforced. She said we know that school is not theanswer for every student. She said she hopes thatthis bill draft is not being too heavy-handed andcutting students off from their dreams.

Senator Cook said we are probably going to haveto address the need for more alternative educationforums.

With the permission of Chairman Kelsch, Dr. KentHjelmstad, Superintendent, Mandan Public SchoolDistrict, presented testimony regarding the bill draftrelating to compulsory school attendance. His testi-mony is attached as Appendix N. He said the idea ofputting teeth into a truancy law is welcome.

In response to a question from RepresentativeKelsch, Dr. Hjelmstad said there is a differencebetween truancy and being away from school for alegitimate reason.

Representative Williams said flexibility will not be aproblem. He said every school district has a hand-book that includes policies regarding excused andunexcused absences.

Representative Delmore said the strength of thisbill draft is that it allows for school and school district

No Child Left Behind 28 September 9-10, 2004

policies regarding absences. She said in her districtthe difference between an excused and an unexcusedabsence is well-known.

It was moved by Senator Cook, seconded bySenator Freborg, and carried on a roll call votethat the bill draft relating to compulsory schoolattendance be approved and recommended to theLegislative Council. Representatives Kelsch,Hunskor, Meier, Sitte, and Williams and SenatorsCook, Freborg, Lee, Taylor, and Wardner voted "aye."No negative votes were cast.

Senator Cook said there are two things missingfrom how we are trying to implement the NCLB Act.He said one is trust and the other is ownership. Hesaid all of the players have to be at the table andespecially so when a new bill is being implemented.

It was moved by Senator Cook that the Legisla-tive Council staff be asked to prepare a bill draftcreating an advisory commission to the Depart-ment of Public Instruction.

Senator Cook said DPI could have formed thiscommittee a long time ago. He said DPI could evenform this committee now.

Representative Sitte said she views this interimcommittee as playing that essential role. She saidthis interim committee has finally allowed legislativeoversight over the NCLB Act. She said an advisorygroup has a role but it should not replace this interimcommittee. She said the interim committee has tocontinue. She said there are three groups repre-sented by the coalition. However, she said, the coali-tion does not include other impacted groups such as

parents and teachers who are not members of theNorth Dakota Education Association.

Senator Cook said he does not disagree. He saidthe players that have to live and breathe and workwith the NCLB Act are the ones who need to be at thetable.

Representative Delmore said the coalition repre-sents the stakeholders in this game and there is valuein having them together.

Senator Taylor said that the Indian AffairsCommission should also be represented on the coali-tion's advisory committee.

Senator Cook said the bill draft should bepatterned after the Advisory Commission on Intergov-ernmental Relations.

The motion to request a bill draft creating anadvisory committee was carried on a voice vote.

Chairman Kelsch said she and the coalition willwork with the Legislative Council staff to determinewhich of their other recommendations can be put intoa bill draft for the committee's consideration at its nextmeeting. She said the goal is to determine what willbe best for the students of North Dakota.

No further business appearing, Chairman Kelschadjourned the meeting at 12:00 noon.

___________________________________________L. Anita ThomasCommittee Counsel

ATTACH:14

No Child Left Behind 29 September 9-10, 2004