Appendix A- Statute Authorizing Naep

NATIONAL ASSESSMENT OF
EDUCATIONAL PROGRESS

APPENDIX A
STATUTE AUTHORIZING NAEP
SYSTEM CLEARANCE PROPOSAL
NAEP SURVEYS
FOR THE YEARS 2011-2013

October 26, 2009

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Statute Authorizing the
National Assessment of Educational Progress
(National Education Statistics Act of 1994 (Title 20,
U.S.C. 9010)

As Amended in Section 411 of Public Law 107-110 (No
Child Left Behind Act of 2001)

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P.L. 107-110 -- No Child Left Behind Act of 2001
Signed by the President -- January 8, 2002
SEC. 602. AMENDMENT TO THE NATIONAL EDUCATION STATISTICS ACT OF 1994.
(a) NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS.-- Section 411 of the National
Education Statistics Act of 1994 (20 U.S.C. 9010) is amended to read as follows:
"SEC. 411. NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS.
"(a) ESTABLISHMENT.-- The Commissioner shall, with the advice of the National Assessment
Governing Board established under section 412, and with the technical assistance of the Advisory Council
established under section 407, 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 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;
"(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;
"(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 the
date of enactment of the No Child Left Behind Act of 2001;
"(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;
"(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
"(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.

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"(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);
"(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
"(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), that such assessment produces
high quality data that are valid and reliable.
"(B) AGREEMENT.-"(i) IN GENERAL.-- States participating in State assessments shall enter into an
agreement with the Secretary pursuant to subsection (d)(3).
"(ii) CONTENT.-- 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.
"(C) REVIEW AND RELEASE.-"(i) IN GENERAL.-- 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.
"(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 1111 of the Elementary and Secondary
Education Act of 1965.
"(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.
"(C) APPLICABILITY TO STUDENT EDUCATIONAL DECISIONS.-- 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), shall--

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"(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;
"(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
"(C) collect information on race, ethnicity, socioeconomic status, disability, limited
English proficiency, and gender.
"(6) TECHNICAL ASSISTANCE.-- In carrying out any assessment authorized under this section,
the Commissioner may provide technical assistance to States, localities, and other parties.
c) ACCESS.-"(1) PUBLIC ACCESS.-"(A) IN GENERAL.-- 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.
"(C) PROHIBITION.-- 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.
"(C) REVIEW.-- 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, United States Code, for a period,
not to exceed 10 years after initial use, cognitive questions that the
Commissioner intends to reuse in the future.

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"(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.
"(3) PERSONALLY IDENTIFIABLE INFORMATION.-"(A) IN GENERAL.-- 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, United States Code.
"(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, United States Code or charged with a class E felony.
"(d) PARTICIPATION.-"(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.-- 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.
"(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), except the review described
in subparagraph (2)(C) of subsection (c) shall take place in consultation with the
representatives described in this paragraph.
"(e) STUDENT ACHIEVEMENT LEVELS.-"(1) ACHIEVEMENT LEVELS.-- 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).
"(2) DETERMINATION OF LEVELS.-"(A) IN GENERAL.-- Such levels shall -"(i) be determined by --

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"(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.
"(C) TRIAL BASIS.-- The achievement levels shall be used on a trial
basis until the Commissioner determines, as a result of an evaluation
under subsection (f), that such levels are reasonable, valid, and
informative to the public.
"(D) STATUS.-- 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), 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), 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.-"(A) IN GENERAL.-- 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.-- Such continuing review shall address-"(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 student achievement levels are reasonable, valid,
reliable, and informative to the public;
"(iii) whether any authorized assessment is being administered
as a random sample and is reporting the trends in academic

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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 412(e)(4); 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 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
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 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."

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