20 U.S.C. § 9010 (changes) — 9010, 9011. Transferred

Current — January 8, 2002

As of October 20, 1994

(a) Establishment

The Commissioner shall, with the advice of the National Assessment Governing Board established under section 9011 of this title, and with the technical assistance of the Advisory Council established under section 9006 of this title, carry out, through grants, contracts, or cooperative agreements with one or more qualified organizations, or consortia thereof, a National Assessment of Educational ~~Progress (hereafter in this chapter referred~~ to ~~as the “National Assessment”).~~

The Commissioner shall, with the advice of the National Assessment Governing Board established under section 9011 of this title, and with the technical assistance of the Advisory Council established under section 9006 of this title, carry out, through grants, contracts, or cooperative agreements with one or more qualified organizations, or consortia thereof, a National Assessment of Educational Progress, which collectively refers to a national assessment, State assessments, and a long-term trend assessment in reading and mathematics.

(b) Purpose; State assessments

(1) Purpose

The purpose of the National Assessment is to provide a fair and accurate presentation of educational achievement in reading, writing, and the other subjects included in the third National Education Goal, regarding student achievement and citizenship. The Commissioner, in carrying out the National Assessment, shall use sampling techniques that produce data that are representative on a national and regional basis, and on a State basis pursuant to paragraph (2). In addition, the Commissioner shall—

The purpose of this section is to provide, in a timely manner, a fair and accurate measurement of student academic achievement and reporting trends in such achievement in reading, mathematics, and other subject matter as specified in this section.

(2) Measurement and reporting

The Commissioner, in carrying out the measurement and reporting described in paragraph (1), shall—

(A) use a random sampling process which is consistent with relevant, widely accepted professional assessment standards and that produces data that are representative on a national and regional basis;

~~(A)~~ collect and report data on a ~~periodic basis, but~~ at least once every ~~two~~ years, ~~on students at ages 9, 13, and 17 and~~ in grades ~~4, 8,~~ and 12 in ~~public~~ and ~~private schools;~~

(B) conduct a national assessment and collect and report assessment data, including achievement data trends, in a valid and reliable manner on student academic achievement in public and private elementary schools and secondary schools at least once every 2 years, in grades 4 and 8 in reading and mathematics;

(B) report achievement data on a basis that ensures valid and reliable trend reporting;

(C) conduct a national assessment and collect and report assessment data, including achievement data trends, in a valid and reliable manner on student academic achievement in public and private schools in reading and mathematics in grade 12 in regularly scheduled intervals, but at least as often as such assessments were conducted prior to January 8, 2002;

(D) to the extent time and resources allow, and after the requirements described in subparagraph (B) are implemented and the requirements described in subparagraph (C) are met, conduct additional national assessments and collect and report assessment data, including achievement data trends, in a valid and reliable manner on student academic achievement in grades 4, 8, and 12 in public and private elementary schools and secondary schools in regularly scheduled intervals in additional subject matter, including writing, science, history, geography, civics, economics, foreign languages, and arts, and the trend assessment described in subparagraph (F);

(E) conduct the reading and mathematics assessments described in subparagraph (B) in the same year, and every other year thereafter, to provide for 1 year in which no such assessments are conducted in between each administration of such assessments;

(F) continue to conduct the trend assessment of academic achievement at ages 9, 13, and 17 for the purpose of maintaining data on long-term trends in reading and mathematics;

~~(C)~~ include information on special groups, including, whenever feasible, information collected, ~~cross-tabulated, analyzed,~~ and reported by ~~sex, race or ethnicity and~~ socioeconomic ~~status;~~ and

(G) include information on special groups, including, whenever feasible, information collected, cross tabulated, compared, and reported by race, ethnicity, socioeconomic status, gender, disability and limited English proficiency; and

~~(D)~~ ensure that achievement data are made available on a timely basis following official reporting, in a manner that facilitates further ~~analysis.~~

(H) ensure that achievement data are made available on a timely basis following official reporting, in a manner that facilitates further analysis and that includes trend lines.

~~(2)~~ State assessments

(3) State assessments

(A) In general

The Commissioner—

(i) shall conduct biennial State academic assessments of student achievement in reading and mathematics in grades 4 and 8 as described in paragraphs (1)(B) and (1)(E);

~~(A)(i) The Commissioner, in carrying out the National Assessment,~~ may conduct State assessments of student achievement in ~~grades 4, 8,~~ and ~~12.~~

(ii) may conduct the State academic assessments of student achievement in reading and mathematics in grade 12 as described in paragraph (1)(C);

(iii) may conduct State academic assessments of student achievement in grades 4, 8, and 12 as described in paragraph (1)(D); and

~~(ii) Each~~ such State assessment, in each subject area and at each grade level, ~~shall be conducted~~ on a developmental basis until the Commissioner determines, as the result of an evaluation required by subsection (f) of this section, that such assessment produces high quality data that are valid and reliable.

(iv) shall conduct each such State assessment, in each subject area and at each grade level, on a developmental basis until the Commissioner determines, as the result of an evaluation required by subsection (f) of this section, that such assessment produces high quality data that are valid and reliable.

(B) Agreement

(i) In general

~~(B)(i)~~ States ~~wishing to participate~~ in State assessments shall enter into an agreement with the Secretary pursuant to subsection ~~(d)(2)~~ of this section.

States participating in State assessments shall enter into an agreement with the Secretary pursuant to subsection (d)(3) of this section.

(ii) Content

~~(ii)~~ Such agreement shall contain information sufficient to give States full information about the process for consensus ~~decisionmaking~~ on objectives to be tested, and the standards for sampling, test administration, test security, data collection, validation, and reporting.

Such agreement shall contain information sufficient to give States full information about the process for decision-making (which shall include the consensus process used), on objectives to be tested, and the standards for random sampling, test administration, test security, data collection, validation, and reporting.

(i) In general

~~(C) A~~ participating State shall review and give permission for the release of results from any test of its students administered as a part of a State assessment prior to the release of such data. Refusal by a State to release its data shall not restrict the release of data from other States that have approved the release of such data.

Except as provided in clause (ii), a participating State shall review and give permission for the release of results from any test of its students administered as a part of a State assessment prior to the release of such data. Refusal by a State to release its data shall not restrict the release of data from other States that have approved the release of such data.

(3) Prohibited data

(ii) Special rule

A State participating in the biennial academic assessments of student achievement in reading and mathematics in grades 4 and 8 shall be deemed to have given its permission to release its data if the State has an approved plan under section 6311 of this title.

(4) Prohibited activities

(A) In general

The use of assessment items and data on any assessment authorized under this section by an agent or agents of the Federal Government to rank, compare, or otherwise evaluate individual students or teachers, or to provide rewards or sanctions for individual students, teachers, schools or local educational agencies is prohibited.

(B) Special rule

Any assessment authorized under this section shall not be used by an agent or agents of the Federal Government to establish, require, or influence the standards, assessments, curriculum, including lesson plans, textbooks, or classroom materials, or instructional practices of States or local educational agencies.

Nothing in this section shall be construed to prescribe the use of any assessment authorized under this section for student promotion or graduation purposes.

(D) Applicability to home schools

Nothing in this section shall be construed to affect home schools, whether or not a home school is treated as a home school or a private school under State law, nor shall any home schooled student be required to participate in any assessment referenced or authorized under this section.

(5) Requirement

In carrying out any assessment authorized under this section, the Commissioner, in a manner consistent with subsection (c)(2) of this section, shall—

(A) use widely accepted professional testing standards, objectively measure academic achievement, knowledge, and skills, and ensure that any academic assessment authorized under this section be tests that do not evaluate or assess personal or family beliefs and attitudes or publicly disclose personally identifiable information;

~~In carrying out the National Assessment, the Commissioner shall not~~ collect ~~any data~~ that ~~are not~~ directly related to the appraisal of ~~educational performance,~~ achievement, and ~~traditional demographic reporting variables, or~~ to the fair and accurate presentation of such ~~information.~~

(B) only collect information that is directly related to the appraisal of academic achievement, and to the fair and accurate presentation of such information; and

~~(4)~~ Technical assistance

(6) Technical assistance

In carrying out ~~the National Assessment,~~ the Commissioner may provide technical assistance to States, localities, and other parties.

In carrying out any assessment authorized under this section, the Commissioner may provide technical assistance to States, localities, and other parties.

(1) Public access

(A) In general

Except as provided in paragraph ~~(2),~~ the public shall have access to all data, questions, and ~~test~~ instruments of the ~~National Assessment.~~

Except as provided in paragraph (3), parents and members of the public shall have access to all assessment data, questions, and complete and current assessment instruments of any assessment authorized under this section. The local educational agency shall make reasonable efforts to inform parents and members of the public about the access required under this paragraph.

(B) Timeline

The access described in this paragraph shall be provided within 45 days of the date the request was made, in writing, and be made available in a secure setting that is convenient to both parties.

To protect the integrity of the assessment, no copy of the assessment items or assessment instruments shall be duplicated or taken from the secure setting.

(2) Complaints

(A) In general

Parents and members of the public may submit written complaints to the National Assessment Governing Board.

(B) Forwarding of complaints

The National Assessment Governing Board shall forward such complaints to the Commissioner, the Secretary of Education, and the State and local educational agency from within which the complaint originated within 30 days of receipt of such complaint.

The National Assessment Governing Board, in consultation with the Commissioner, shall review such complaint and determine whether revisions are necessary and appropriate. As determined by such review, the Board shall revise, as necessary and appropriate, the procedures or assessment items that have generated the complaint and respond to the individual submitting the complaint, with a copy of such response provided to the Secretary, describing any action taken, not later than 30 days after so acting.

(D) Report

The Secretary shall submit a summary report of all complaints received pursuant to subparagraph (A) and responses by the National Assessment Governing Board pursuant to subparagraph (B) to the Chairman of the House Committee on Education and the Workforce, and the Chairman of the Senate Committee on Health, Education, Labor, and Pensions.

(E) Cognitive questions

(i) In general

The Commissioner may decline to make available through public means, such as posting on the Internet, distribution to the media, distribution through public agencies, or in response to a request under section 552 of title 5, for a period, not to exceed 10 years after initial use, cognitive questions that the Commissioner intends to reuse in the future.

(ii) Extension

Notwithstanding clause (i), the Commissioner may decline to make cognitive questions available as described in clause (i) for a period longer than 10 years if the Commissioner determines such additional period is necessary to protect the security and integrity of long-term trend data.

~~(2)~~ Personally identifiable information

(3) Personally identifiable information

(A) In general

~~(A)~~ The Commissioner shall ensure that all personally identifiable information about students, their ~~educational performance,~~ and their families, and that information with respect to individual schools, remains confidential, in accordance with section 552a of title 5.

The Commissioner shall ensure that all personally identifiable information about students, their academic achievement, and their families, and that information with respect to individual schools, remains confidential, in accordance with section 552a of title 5.

(B) Notwithstanding any other provision of law, the Commissioner may decline to make available to the public for a period, not to exceed ten years after initial use, cognitive questions that the Commissioner intends to reuse in the future.

(B) Prohibition

The National Board, the Commissioner, and any contractor or subcontractor shall not maintain any system of records containing a student's name, birth information, Social Security number, or parents’ name or names, or any other personally identifiable information.

(4) Penalties

Any unauthorized person who knowingly discloses, publishes, or uses assessment questions, or complete and current assessment instruments of any assessment authorized under this section may be fined as specified in section 3571 of title 18 or charged with a class E felony.

(d) Participation

(1) National and regional

Participation in the national and regional assessments by State and local educational agencies shall be voluntary.

(2) State

(1) Voluntary participation

Participation in any assessment authorized under this section shall be voluntary for students, schools, and local educational agencies.

(2) Student participation

Parents of children selected to participate in any assessment authorized under this section shall be informed before the administration of any authorized assessment, that their child may be excused from participation for any reason, is not required to finish any authorized assessment, and is not required to answer any test question.

(3) State participation

(A) Voluntary

Participation in assessments authorized under this section, other than reading and mathematics in grades 4 and 8, shall be voluntary.

(B) Agreement

~~Participation in~~ assessments ~~made on a State basis shall be voluntary. The Commissioner~~ shall enter into an agreement with any State ~~that desires to carry~~ out an assessment for the State under this ~~subsection.~~ Each such agreement shall contain provisions designed to ensure that the State ~~will—~~

For reading and mathematics assessments in grades 4 and 8, the Secretary shall enter into an agreement with any State carrying out an assessment for the State under this section. Each such agreement shall contain provisions designed to ensure that the State will participate in the assessment.

(A) participate in the assessment; and

(B) pay from non-Federal sources the non-Federal share of such participation.

(3) Non-Federal share

(A) For each fiscal year, the non-Federal share for the purpose of paragraph (2)(B) shall be—

(i) the cost of conducting the assessment at the school level for all public schools in the State sample;

(ii) the cost of coordination within the State; and

(iii) other reasonable costs specified by the Secretary in the agreement described in paragraph (2), such as the cost of analyzing and reporting the data.

(B) The non-Federal share of payments under this paragraph may be in cash or in kind, fairly valued.

(C) The agreement described in paragraph (2) shall describe the manner in which the costs of administering the assessment to private nonprofit schools included in the State sample will be met.

(4) Review

Representatives of State educational agencies and local educational agencies or the chief State school officer shall have the right to review any assessment item or procedure of any authorized assessment upon request in a manner consistent with subsection (c) of this section, except the review described in subparagraph (2)(C) of subsection (c) of this section shall take place in consultation with the representatives described in this paragraph.

(e) Student ~~performance~~ levels

(e) Student achievement levels

(1) ~~Performance~~ levels

(1) Achievement levels

The National Assessment Governing ~~Board, established under section 9011 of this title,~~ shall develop appropriate student ~~performance~~ levels for each ~~age and~~ grade in each subject area to be tested under the ~~National Assessment.~~

The National Assessment Governing Board shall develop appropriate student achievement levels for each grade or age in each subject area to be tested under assessments authorized under this section, except the trend assessment described in subsection (b)(2)(F) of this section.

(2) ~~Development~~ of levels

(2) Determination of levels

(A) In general

~~(A)~~ Such levels ~~shall be—~~

Such levels shall—

(i) devised through a national consensus approach, providing for active participation of teachers, curriculum specialists, local school administrators, parents, and concerned members of the general public;

(i) 1 be determined by—

(I) identifying the knowledge that can be measured and verified objectively using widely accepted professional assessment standards; and

(II) developing achievement levels that are consistent with relevant widely accepted professional assessment standards and based on the appropriate level of subject matter knowledge for grade levels to be assessed, or the age of the students, as the case may be.

(B) National consensus approach

After the determinations described in subparagraph (A), devising a national consensus approach.

~~(ii)~~ used on a ~~developmental~~ basis until the Commissioner determines, as ~~the~~ result of an evaluation under subsection (f) of this section, that such levels are reasonable, valid, and informative to the ~~public; and~~

The achievement levels shall be used on a trial basis until the Commissioner determines, as a result of an evaluation under subsection (f) of this section, that such levels are reasonable, valid, and informative to the public.

(iii) updated as appropriate.

(D) Status

~~(B) In using such levels on a developmental basis, the~~ Commissioner and the Board shall ensure that reports ~~that use~~ such levels do so in a manner that makes clear the ~~developmental~~ status of such levels.

The Commissioner and the Board shall ensure that reports using such levels on a trial basis do so in a manner that makes clear the status of such levels.

(E) Updates

Such levels shall be updated as appropriate by the National Assessment Governing Board in consultation with the Commissioner.

(3) Reporting

After determining that such levels are reasonable, valid, and informative to the public, as the result of an evaluation under subsection (f) of this section, the Commissioner shall use such levels or other methods or indicators for reporting results of the National Assessment and State assessments.

(4) Review

The National Assessment Governing Board shall provide for a review of any trial student achievement levels under development by representatives of State educational agencies or the chief State school officer in a manner consistent with subsection (c) of this section, except the review described in subparagraph (2)(C) shall take place in consultation with the representatives described in this paragraph.

(f) Review of National and State assessments

(1) Review

~~(1)~~ In general

(A) In general

~~(A)~~ The Secretary shall provide for continuing review of ~~the National Assessment, State assessments,~~ and student ~~performance~~ levels, by one or more ~~nationally recognized~~ evaluation ~~organizations, such as the National Academy of Education and the National Academy of Sciences.~~

The Secretary shall provide for continuing review of any assessment authorized under this section, and student achievement levels, by one or more professional assessment evaluation organizations.

(B) Issues addressed

~~(B)~~ Such continuing review shall address—

Such continuing review shall address—

(i) whether ~~each developmental State~~ assessment is properly administered, produces high quality data that are valid and reliable, and produces data on student achievement that are not otherwise available to the State (other than data comparing participating States to each other and the Nation); ~~and~~

(i) whether any authorized assessment is properly administered, produces high quality data that are valid and reliable, is consistent with relevant widely accepted professional assessment standards, and produces data on student achievement that are not otherwise available to the State (other than data comparing participating States to each other and the Nation);

(ii) whether ~~developmental~~ student ~~performance~~ levels are reasonable, valid, and informative to the ~~public.~~

(ii) whether student achievement levels are reasonable, valid, reliable, and informative to the public;– 2

(iii) whether any authorized assessment is being administered as a random sample and is reporting the trends in academic achievement in a valid and reliable manner in the subject areas being assessed;

(iv) whether any of the test questions are biased, as described in section 9011(e)(4) of this title; and

(v) whether the appropriate authorized assessments are measuring, consistent with this section, reading ability and mathematical knowledge.

(2) Report

The Secretary shall report to the ~~Congress,~~ the President, and the Nation on the findings and recommendations of such reviews.

The Secretary shall report to the Committee on Education and the Workforce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate, the President, and the Nation on the findings and recommendations of such reviews.

(3) Use of findings and recommendations

The Commissioner shall consider the findings and recommendations of such reviews in designing the competition to select the organization, or organizations, through which the Commissioner carries out the National Assessment.

The Commissioner and the National Assessment Governing Board shall consider the findings and recommendations of such reviews in designing the competition to select the organization, or organizations, through which the Commissioner carries out the National Assessment.

(g) Coverage agreements

(1) Department of Defense schools

The Secretary and the Secretary of Defense may enter into an agreement, including such terms as are mutually satisfactory, to include in the National Assessment elementary and secondary schools operated by the Department of Defense.

The Secretary and the Secretary of Defense may enter into an agreement, including such terms as are mutually satisfactory, to include in the National Assessment elementary schools and secondary schools operated by the Department of Defense.

(2) Bureau of Indian Affairs schools

The Secretary and the Secretary of the Interior may enter into an agreement, including such terms as are mutually satisfactory, to include in the National Assessment schools for Indian children operated or supported by the Bureau of Indian Affairs.