On January 8, 2002, President Bush signed into law the reauthorization of the Elementary and Secondary Education Act, commonly known as No Child Left Behind< ("NCLB"). The four pillars of the new legislation — accountability, flexibility, scientifically-based research, and options for parents — call for a multi-faceted approach to holding public schools accountable for improving the academic achievement of their students. Like all public schools in the country, Massachusetts charter schools are subject to the requirements of NCLB and should be well versed with this comprehensive legislation. The United States Department of Elementary and Secondary Education ("USDE") and the Massachusetts Department of Elementary and Secondary Education ("ESE") have released, and will continue to issue as needed, documents that provide guidance on implementing the numerous components of NCLB. Charter school leaders should refer to these documents when seeking detailed information on specific elements of NCLB. The purpose of this technical advisory is to provide information that is specific to the unique issues and impact of NCLB on Massachusetts charter schools.
NCLB requires all public school students to be taught by highly qualified teachers in the core academic subjects (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography) by the end of the 2005-2006 school year. This requirement applies to charter schools as well as other public schools. More immediately, NCLB requires all teachers who teach core academic subjects in a Title I program and who were hired after January 8, 2002 to meet the highly qualified requirements as a stipulation of employment. Again, this general requirement applies to charter schools as well as to other public schools.
The USDE issued Title II, Part A (Improving Teacher Quality) Non-Regulatory Guidance on December 19, 2002 that specifically defines the requirements that teachers in charter schools must meet in order to be considered highly qualified.
Charter school teachers who teach core academic subjects must comply with any provision in a State's charter school law regarding certification or licensure requirements. A teacher in a charter school does not have to be licensed or certified by the State if the State does not require such licensure or certification. However, teachers of core academic subjects in charter schools must meet the other requirements that apply to public school teachers, including holding a four-year college degree and demonstrating competence in the subject area in which they teach. (United States Department of Elementary and Secondary Education. Title II, Part A Non-Regulatory Guidance, Page 91.)
Because Massachusetts law does not require charter school teachers to be certified, such teachers do not need to be certified to meet the definition of a highly qualified teacher. In order to be considered highly qualified, however, a charter school teacher in Massachusetts must:
The DESE has defined the mechanisms by which teachers, including charter school teachers, can demonstrate subject matter competence in the areas in which they are teaching. These options are outlined in the DESE's NCLB Policy Draft on Highly Qualified Teachers dated February 10, 2003. Charter schools, like other public schools, that have Title I programs must report annually the percentage of their teaching staff that is highly qualified via the school report cards required by NCLB (See Report Cards below.)
It is important to note that the teacher requirements found in the Massachusetts charter school law represent the minimum threshold for charter school teachers. The Massachusetts charter school law requires teachers in charter schools who were hired after August 10, 2000 to take and pass, within their first year of employment at a charter school, the Massachusetts Tests for Educator Licensure ("MTEL"), or be certified to teach in Massachusetts. While teachers hired by a charter school before August 10, 2000 do not need to meet such requirements under state law, all teachers in charter schools must meet the additional federal requirements of NCLB.
The requirements that NCLB places on instructional paraprofessionals working in Title I programs are applicable to these paraprofessionals working in charter schools. These include:
NCLB requires all students to reach proficiency on state standards by 2013-2014. Adequate Yearly Progress ("AYP") represents the minimum level of improvement that states, school districts, and schools must achieve each year in order to meet this goal. Massachusetts has defined an accountability system for all public schools that, consistent with NCLB, tracks schools' progress toward meeting the goal of all students achieving proficiency by 2013-2014. This system is based on MCAS results, and beginning in 2003 and beyond attendance and dropout/graduation rate indicators, that measure the proficiency and improvement levels achieved, and in turn, determine an AYP rating. As public schools, charter schools are held accountable to making AYP. Further information regarding Massachusetts' School and District Accountability System can be found on the Department's website.
MCAS results, and therefore AYP ratings, are an important measure in the overall set of evidence that is collected and analyzed to determine whether a charter school has met the criteria for renewal at the end of its five-year charter. It is important to note, however, that AYP ratings do not replace the accountability system that has been established for Massachusetts charter schools. Simply put, AYP ratings alone do not drive a charter school renewal decision that is based upon the success of the school's academic program, the viability of the school as an organization, and the faithfulness of the school to the terms of its charter.
Charter schools, however, should by no means overlook the importance of AYP ratings. Not only do these ratings serve as a critical measure for the Department and the public in evaluating the effectiveness of public schools, failure to meet them may result in certain actions, including those outlined in the NCLB legislation. NCLB defines sanctions for all public schools, including charter schools, with an emphasis on those schools receiving Title I funds that fail to make AYP. According to federal law, a Title I school that fails to make AYP for two consecutive years must be designated as a "School In Need of Improvement". Like their local district school counterparts, charter schools are subject to these sanctions. As the number of consecutive years that a school does not meet its AYP targets increases, so do the severity of the sanctions placed on such schools. The most severe sanctions could put a school's charter in jeopardy of being revoked or not renewed. (See Supplemental Services, Restructuring, and Reconstitution below.)
NCLB requires all schools that fail to make AYP in two consecutive years to send notification to parents that the school has not made AYP. Furthermore, a Title I school that has not made AYP in two consecutive years and is a "School In Need of Improvement" must notify parents of their right to request that their child be transferred to a different school that has made AYP in the district. While the parental notification requirement is the same for charter schools as it is for other public schools, the "transfer" provision is different for a charter school.
Massachusetts charter schools are, by definition, schools of choice; students are not "assigned" to attend a charter school. Rather, parents and/or students choose to attend a charter school instead of their district offering(s). At any time, regardless of whether a charter school has made AYP or not, parents and/or students can choose to return to their district school. Thus, a charter school that is designated as a "School In Need of Improvement" has the responsibility of informing parents of the school's status but does not need to provide parents with other school options beyond the choice to return to their local district school(s).
NCLB also requires that a percentage of the Title I funds of a school "In Need of Improvement" be set aside to pay for the costs associated with transporting a student or students to a school that has made AYP. Because the intent of this provision is to ensure that students have options to attend high-performing public schools, it is not applicable to charter schools as they are schools of choice. Thus, a charter school that is "In Need of Improvement" is not required to set aside funds for transporting students to other schools but may provide such services should they desire to do so.
Parents of students from local district schools or neighboring school districts that have not made AYP may submit an application to a charter school for their child. Because charter schools are required to enroll students by lottery, students from schools designated as a "School In Need of Improvement" may not receive preference in enrollment. Applications from such students must be considered in the same manner as an application from any other student when filling available slots at a charter school.
Title I schools, including charter schools, that are "In Need of Improvement" for a third consecutive year are obligated to commit a portion of their Title I funding to offer supplemental services to their students.
If a school receiving Title I funds is "In Need of Improvement" for a fourth consecutive year, federal law requires the school to implement one or more "corrective actions." Such actions include, but are not limited to, replacing certain school staff; implementing a new curriculum; extending the school day or year; or restructuring the internal organization of the school. If the school does not make AYP in a fifth consecutive year, it must begin planning for "restructuring". During restructuring, one of the following actions is implemented: converting the school to charter school status; replacing all or most of the school staff; contracting with an entity with a demonstrated record of effectiveness, such as a private management company, to operate the public school; turning the operation of the school over to the state educational agency; or any other major restructuring of the school's governance arrangement that makes fundamental reforms (No Child Left Behind Act of 2002 Sec. 1116(8)(A); 20 U.S.C. 6316(8)(A).
While NCLB outlines specific actions for restructuring a failing school, Massachusetts charter school law states additional possible consequences for a "failing" charter school. These consequences include revocation or non-renewal of the school's charter by the state Board of Education. Therefore, charter schools should be aware that a very real possibility for "restructuring" may be revocation or non-renewal of its charter.
District public schools that are required to restructure may consider converting to charter school status. The Massachusetts charter school statute defines the process by which persons and entities can apply for a public school charter. Restructuring an existing district school into a charter school, under either the Commonwealth or Horace Mann models, requires following the application process as defined by state law and policy.
NCLB requires that schools, both Title I and non-Title I, that have not made AYP for two consecutive years, develop a School Improvement Plan that sets forth concrete actions for improving student achievement. A charter school that has not made AYP for two consecutive years should review the necessary components of the School Improvement Plan to align its requirements with the documents already guiding the school's academic and non-academic programs, in particular the school's charter and accountability plan. The purpose of the School Improvement Plan is to establish annual, measurable goals and overall improvement objectives (related especially to achievement of AYP), analyze why the school has not yet achieved its goals, and describe what strategies the school will use to improve performance. Most of the elements required in the School Improvement Plan should already be included in the charter school's accountability plan and annual reports on the school's progress toward meeting its goals. While a separate document may be needed to articulate clearly every point in the School Improvement Plan, a charter school should not view this document as distinct and unconnected to the goals and objectives outlined in its accountability plan. Doing so could create confusion over what the school intends to do for students. Rather, there should be a clear connection between these guiding documents that leads to increased academic achievement.
NCLB requires that all districts and schools, including charter schools, that receive Title I funds annually prepare and disseminate report cards. The law specifies the following data that must be reported: dropout/graduation rates; professional qualifications of the teaching staff; state standardized test (MCAS) results; and AYP determinations. Additional information may be included at the school's discretion. The DESE has designed a report card application that can support schools in meeting these requirements. Schools, however, are not obligated to use it. Additional information and guidance about the report card requirements of NCLB can be found on the Department's website.
Massachusetts charter school law requires that charter schools submit an annual report on August 1st of each year. The NCLB report card requirement does not exempt a charter school from this responsibility. In its annual report, a charter school is required to present a comprehensive picture of the recently completed school year with a particular focus on its progress towards meeting the academic and non-academic goals set forth in the school's accountability plan. This requirement extends beyond the data elements that are required on the NCLB report card.
Currently, there is no requirement regarding the date by which these report cards must be issued; therefore, including the NCLB-mandated data in the charter school's annual report satisfies the NCLB report card requirement. It is important to note that NCLB requires public schools to "publicly disseminate [the report card] to … parents of students attending those schools" whereas the Massachusetts charter school regulations require annual reports to be made a"vailable to every parent or guardian of its enrolled students." Thus, if a charter school chooses to satisfy the report card requirement through its annual report, the charter school will be responsible for ensuring that parents and guardians of all students attending the school receive a copy of the annual report.
The passage of NCLB marked a new level of accountability for all public schools, including charter schools. Its passage, however, does not diminish the responsibility of charter school authorizers to hold charter schools accountable. Section 1111(b)(2)(K) of NCLB (20 U.S.C. 6311(b)(2)(K)) and Section 200.49(f) of the final federal Title I regulations require that accountability for charter schools be overseen in accordance with state charter school law. In accordance with federal and state laws, the Massachusetts Board of Education will continue its oversight of Massachusetts charter schools. Collectively, the MA Board of Education and MA Department of Elementary and Secondary Education provide the oversight required by NCLB and the charter school accountability system.
The remainder of this Technical Advisory is a series of more specific Questions and Answers regarding how the NCLB requirements apply to Massachusetts charter schools and what schools need to do to satisfy those requirements. These Questions and Answers and this Technical Advisory will be available at the Charter School Office website and will be updated as necessary.
Q1. Does NCLB require a teacher in a Massachusetts charter school to be certified in order to be considered "highly qualified?"
No. Because Massachusetts charter school law does not require teachers in charter schools to be certified, charter school teachers do not need to be certified in order to meet the NCLB definition of "highly qualified." Charter school teachers, however, must meet the other NCLB requirements to hold a bachelor's degree and demonstrate subject matter competency in the areas they teach, in order to be considered "highly qualified."
Q2. Are the instructional paraprofessional qualifications mandated by NCLB applicable to charter schools receiving Title I funds?
Yes. Paraprofessionals with instructional support duties in charter schools receiving Title I funds must meet the same NCLB requirements as instructional paraprofessionals in district schools receiving Title I funds.
Q3. Are charter schools subject to meeting adequate yearly progress (AYP)?
Yes. Charter schools, like all Massachusetts public schools, are subject to the state's accountability requirements, including the requirement to make AYP.
Q4. Are AYP targets the only measure by which charter schools will be held accountable?
No. Massachusetts Charter School Regulations (603 CMR 1.00) provide that the charter school accountability process shall be based on whether the academic program of the school is a success; whether the school is a viable organization; and whether the school has been faithful to the terms of its charter. While AYP determinations are an important measure that informs a charter renewal decision, the Board of Education will continue to look at each of the three questions of charter school accountability to determine whether a school's charter should be renewed.
Q5. How are AYP ratings determined?
AYP ratings for Massachusetts public schools, including charter schools, are issued every two years (a "cycle"), on even numbered years, based on an analysis of a school's MCAS results. Two measures, performance ratings and improvement ratings, inform an AYP determination. In order to receive a performance rating, a school must have data for both years of the rating cycle as well as enough students tested to meet the minimum size requirements. Performance ratings are issued when a school has 20 or more students tested per year, on average, and no fewer than 15 students in any one year. Improvement ratings are issued once a school has administered MCAS for four consecutive years, allowing for baseline and review years. A school needs to have test results for 50 or more students per year on average during the years under review and no fewer than 40 in any one year to receive an improvement rating. A school will be found to have made AYP when performance is at or above the state performance target or when improvement is rated On Target or Above Target.
Q6. When should a new charter school expect to receive its first AYP rating?
An AYP determination can be made based solely on a performance rating if the school's performance is above the state target; otherwise an improvement rating is needed. Thus, a charter school could receive an AYP rating once the school has administered two years of MCAS tests falling in the same cycle.
For example, the next time that AYP determinations are made will be in Cycle III after the release of Spring 2004 MCAS results (analyzing the Spring 2003 and Spring 2004 MCAS administration). ABC Charter School opens its doors for the first time in the Fall of 2003 serving grades 6-8. ABC Charter School will not receive an AYP rating in Cycle III as it will not have the data required (no Spring 2003 administration - the school was not open then). ABC Charter School will have to administer the Spring 2005 and Spring 2006 MCAS to meet the threshold for an AYP rating in Cycle IV. An AYP rating may be determined depending on the school's performance against the state's performance target. If the performance is above the state's target, that school will have made AYP. If the school's performance is below the state's target, additional years of data will be needed for an improvement rating to support the determination.
Q7. Many charter schools have small enrollment numbers in each grade. Will such schools receive an AYP rating?
Performance ratings are issued when a school has 20 or more students tested per year, on average, and no fewer than 15 students in any one year. Improvement ratings are issued when a school has 50 or more students per year on average during the years under review and no fewer than 40 in any one year. Previously the Department rated each grade separately, for grades 4, 7/8, and 10. Thus, the minimum sample size requirements applied to the individual grades. Moving forward, the Department will rate the entire school, not individual grades, so even if a school has small enrollment in each grade, if there were enough students tested across all the MCAS testing grades, then the school could receive an AYP determination.
Q8. Are charter schools subject to the sanctions of NCLB when AYP is not met?
Yes. The sanctions outlined by NCLB for public schools, both Title I and non-Title I, that fail to make AYP are applicable to charter schools.
Q9. When AYP is not met, are the consequences for schools, including charter schools, that do not receive any Title I funds the same as those for schools that receive Title I funds?
NCLB requires all public schools, whether they receive Title I funds or not, to notify parents when AYP is not made. Furthermore, under NCLB all public schools must develop School Improvement Plans when AYP is not made in two consecutive years. The sanctions of providing supplemental services, corrective action, and restructuring, however, are only applicable to schools that receive Title I funding. Furthermore, only schools that receive Title I funds are required to issue annual report cards as defined in the NCLB legislation. The charter school accountability process applies equally to all charter schools.
Q10. Do charter schools identified as "In Need of Improvement" that receive Title I funds need to provide choice options for students to attend a school that has made AYP?
No. Title I schools that have not met AYP for two consecutive years must notify parents of their right to attend another school in the district that has met AYP. Charter schools, however, are schools of choice. Because no student is "assigned" a charter school to attend, parents and students can choose to leave the charter school at any time, regardless of whether the school made AYP or not. Thus, a charter school that does not make AYP is required to notify parents of their AYP status, but has no obligation to provide another schooling option other then notifying parents of the right to attend the school(s) in their district of residence.
Q11. Are charter schools that fail to meet AYP required to offer transportation for students wishing to attend a school other than the charter school?
No. The law requires, to the extent practicable, that districts set aside funds to cover the costs of transporting a student attending a "School In Need of Improvement" to a school that has made AYP. Because this provision is intended to ensure that students have options to attend high-performing public schools, it is not applicable to charter schools as they are in themselves are schools of choice.
Q12. Can charter schools give preference in enrollment to students who attend a school that has not made AYP?
No. The Massachusetts charter school statute requires charter schools to conduct a lottery in a non-discriminating manner when enrolling students. Giving preference in enrollment to a student solely because they are seeking to attend a higher-performing school is not allowed under the Massachusetts charter school statute.
Q13. Are charter schools that do not make AYP for two consecutive years required to create a School Improvement Plan?
Yes. NCLB requires all public schools, including charter schools, that do not make AYP for two consecutive years to develop School Improvement Plans that set forth concrete actions for improving student achievement. Such charter schools should review the necessary components of the School Improvement Plan to incorporate its requirements into the documents already guiding the school's academic and non-academic programs, specifically the school's charter and accountability plan. While a separate document may be needed to clearly articulate the substance necessary in the Improvement Plan, a charter school should not design goals and objectives that create multiple lines of accountability. Rather, there should be a clear crosswalk between these guiding documents that leads to increased academic achievement.
Q14. What would it mean to "restructure" a charter school?
NCLB outlines specific actions for restructuring a failing school, including but not limited to, contracting out the management of the school to a private company or the state or significantly changing the governance structure of the school. Meanwhile, Massachusetts charter school law defines additional consequences for a "failing" charter school: revocation or non-renewal of the school's charter. Therefore, charter schools should be aware that a very real option for restructuring their school could be for the MA Board of Education to revoke or not renew their charters.
Q15. NCLB states that schools that have not met AYP for five consecutive years must plan for restructuring and that converting to charter school status is a potential restructuring action. How would a district school convert to charter school status?
The Massachusetts charter school statute defines the process by which persons and entities apply for a public school charter. Restructuring an existing school into a charter school, under both the Commonwealth and Horace Mann charter school models, would require following the application process as defined by state law and policy.
Q16. Are charter schools required to issue school report cards as defined by NCLB?
Only charter schools that receive Title I funds are required to produce and disseminate the data required in school report cards as defined by NCLB: dropout/graduation rates, qualifications of teaching staff; state standardized test (MCAS) results; and AYP determinations.
Q17. Can a charter school incorporate the data elements of the NCLB report card into its annual report and thereby meet the requirements of NCLB?
Yes. As there is currently no date by which NCLB report cards need to be issued each year, a charter school can choose to use its annual report as the mechanism for reporting the data mandated by NCLB. If a charter school decides to incorporate the NCLB report card requirement into its annual report, however, the parents or guardians of every student attending the charter school must receive a copy of the school's annual report in order to meet the dissemination requirements of the NCLB report card.
Q18. NCLB requires school districts to provide "equitable service to private schools". Is this requirement applicable to Massachusetts charter schools?
No. Although charter schools are considered LEAs for the purpose of receiving federal entitlement funds, they are not subject to the provisions regarding equitable participation to private schools. Such participation is provided to private schools through local school districts.
U.S. Department of Education Resources:
NCLB-related implementation publications and documents coming from the federal government
General information about NCLB for parents and the public
Non-regulatory guidance that provides general information on how NCLB impacts charter schools, including details on accountability requirements; public school choice; supplemental educational services; and teacher and paraprofessional qualifications
MA Department of Elementary and Secondary Education Resources:
NCLB-related publications and documents issued by the DESE
Information about Title I programs for Massachusetts schools
Information about charter schools in Massachusetts
Information on the accountability system for Massachusetts public schools
Last Updated: January 30, 2019
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