"The law clearly states it's the (school districts') responsibility to make that determination and as a state office of education we are absolutely complying with what the law says," Park said last week. "We have the responsibility to make sure they understand that the reasons for the appeal are based on the reasons that we cited."

But in an interview last month, Harrington told the Deseret Morning News that a data error could be a reason to use three-year averaging.

Colby of the U.S. Department of Education disagrees.

"Can you tell me how a statistical error or extreme circumstance falls under (averaging)?" Colby said. "State averaging for safe harbor is not in the workbook. ... They shouldn't be using it."

Davis is reviewing its appeals.

"We're analyzing all the data to make sure whether or not there are substantive data reasons other than the average on which to base changing designations from a no to a yes," Chris Wahlquist, Davis director of research and assessment, said. "Judy Park said she would be adding (averaging) to the workbook this year, so we'll just wait and it will be there I presume for 2008."

Withers praised Davis' action and hoped other districts would follow.