Contrary to the insistence of state education chiefs, Utah school districts cannot average test scores to determine whether a school has met No Child Left Behind standards, U.S. Department of Education representatives told the Deseret Morning News Friday.

Chad Colby, the department's deputy assistant secretary for media affairs, said that state officials should be following the state's accountability workbook, a blueprint Utah set with the federal government for how it will decide whether schools are leaving children behind.

Averaging test scores over three years to see if a school meets the standard is not in it.

Patrick Rooney, policy adviser in the U.S. Department of Education's Office of Elementary and Secondary Education, said his office will contact the Utah State Office of Education over the matter.

"This is the first we heard of this. It's something we in the Department of Education are going to have to put our heads around and grapple with and reach out to the (Utah) office of education," he said.

But the matter is not clear-cut for some Utah school leaders.

Utah once had the green light to use three-year averaging. Other states apparently do it, too, and the State Office of Education has indicated it wants to put it back in the book.

That said, state associate superintendent Brenda Hales says neither the state nor districts have done anything wrong.

"Not in my opinion," she said.

She also says her office has contacted the federal government on this issue.

"I would say it just goes to the complexity of No Child Left Behind and all the issues that go along with granting states flexibility," Hales said.

"What we would rather do is err on the side of one, making sure we are not misidentifying schools because it has severe financial implications for the students," Hales said. "There's the other half of it: We don't want to not identify a school that's in need of improvement. ... Our goal is to be the steward for the state and do what's in (students') best interest. So that's where we're coming from."

No Child Left Behind, the federal education law, expects all students to be able to read and do math well by 2014. States publicly report which schools make "adequate yearly progress," or AYP, toward the goal. They also report which ones don't.

Last spring, 256 Utah schools failed to make AYP, the state reported.

Since, however, those ranks have shrunk by at least 25 schools in Granite District alone. A full report is expected next month.

Three-year averaging was conditionally allowed in Utah's 2003 workbook and was confirmed as appropriate in the U.S. department's December 2005 letter to the State Office of Education. However, that provision was not included in the 2005 workbook the federal government approved the month before. The workbook can change every year.

State Office of Education officials past and present and federal officials aren't sure why.

State Superintendent of Public Instruction Patti Harrington was in meetings and did not return a message seeking comment Friday.

Three-year averaging became an issue in October when a handful of large school districts, notably Davis District, used it to overturn schools' AYP status. Davis applied it to seven schools, including those with data irregularities and huge population shifts — a big deal, considering schools are judged on the performance of each student group, based on ethnicity, disability, income and English language skills.

Officials in other districts, however, didn't know three-year averaging was possible. Some leaders said having a few districts use it rendered the state's reports inconsistent. So superintendents agreed only the state could grant appeals for a calculation error or extreme circumstance.

State school leaders, however, noted that federal law gives school districts authority to say which schools passed and which didn't. A few weeks later, Harrington told superintendents as much and that they could more broadly define what a data error or emergency is but be able to defend it in the event of a federal audit.

Harrington said in an interview last week that a data error could be reason to use three-year averaging.

Hales said the direction is rooted in legal advice from WestEd, which serves as Utah's compliance service center for No Child Left Behind.

But nowhere in Sacramento attorney Michael E. Hersher's written opinion is three-year averaging addressed. Hersher told the Deseret Morning News WestEd only asked him to look at state and district roles in appeal procedures.

The appeals issue — and who has ultimate say — is crucial.

Schools receiving Title I money because they have a lot of low-income students face sanctions — such as requiring districts to bus kids to higher-performing schools if they want to leave — for repeatedly failing to meet No Child Left Behind standards.

Of 25 schools Granite District overturned on appeal, nine were Title I schools that would have been flagged as schools that needed to improve, said Darryl Thomas, district director of research, assessment and evaluation.

"When we discovered the majority of the states are using this (three-year averaging) ... the initial (state) response was, 'Oh, yes, that's wonderful and we'll go ahead and do it ... and put it in next year's workbook,"' Thomas said. "If it's going to be in next year's workbook, why are we penalizing students this year on a technicality that's legal? We're not trying to do anything that's inappropriate.

"This has been just a roller-coaster of ups and downs — yes, we'll do it, maybe we won't, no we won't, yes we will, no you're telling me it sounds like no, we're not. Somebody needs to get their act together."

Davis Superintendent Bryan Bowles indicated the district isn't much moved by Rooney's comments.

"We have determined the status of our schools. That status is based on question in data and (or) data calculation. The (district), by NCLB law, makes the determination. We examined data and have made the determination," Bowles said in an e-mail.

And Hales believes neither the state nor the districts have done anything wrong. As to where her office goes from here, she's not certain. But she said the State Board of Education is expected to discuss some kind of rule on appeals.

"I like No Child Left Behind. I think No Child Left Behind has focused the nation's attention on those students who need the most help in a way that's never been done before. And I think it helps states and districts by giving them data they can use for real meaningful improvement. The difficulty comes in interpreting some of the minutiae of the law," Hales said.

"This isn't an effort to hide anything; it's an effort to be fair and reasonable and make sure what we're doing is to the betterment of the kids in the state."

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