Can the Arizona State Board of Education use 'floating weights' (variable indicator weighting per school) when assigning A through F school grades?

Plain-English summary

Arizona uses an A through F letter grade system to rate every public school and local education agency (LEA) annually. The grades are based on an "annual achievement profile" that combines two main types of measures: academic proficiency (how well students perform on state tests at a point in time) and academic growth or improvement (how much progress students are making compared to where they started).

Representative Paul Boyer asked the AG whether the State Board of Education could use "floating weights" in its grading formula. Floating weights mean the relative weight given to proficiency vs. growth varies from school to school based on the school's student population. Example: a school where most students are below grade level would have growth weighted more heavily (because the meaningful question is whether they are catching up). A school where most students are already proficient would have proficiency weighted more heavily (because the meaningful question is whether the school is keeping them there). The weight "floats" between proficiency and growth based on context.

The AG's answer: yes, floating weights are allowed.

The analysis was a story about federal regulation and the Congressional Review Act.

In November 2016, the U.S. Department of Education promulgated 34 C.F.R. § 200.18 to implement the Every Student Succeeds Act (ESSA). The 2016 version of § 200.18(b)(3) required states, "[w]ithin each grade span, [to] afford the same relative weight to each indicator among all schools." That language ruled out floating weights: every school in a grade span had to use the same relative indicator weighting.

In March 2017, Congress disapproved the 2016 regulation under the Congressional Review Act (5 U.S.C. §§ 801 et seq.). The CRA gives Congress 60 days after a regulation's submission to enact a joint resolution of disapproval; if it does, the regulation "shall have no force or effect" (5 U.S.C. § 802(a)) and the agency cannot reissue it "in substantially the same form" (5 U.S.C. § 801(b)(2)). That is what happened here. Pub. L. No. 115-13, 131 Stat. 77 (2017). The Department of Education then reverted to the prior version of § 200.18 (82 Fed. Reg. 31690 (July 7, 2017)), which does not address floating weights.

Result: as of mid-2017, no federal regulation bars floating weights. The underlying federal statute (20 U.S.C. § 6311(b)(2)) does not address them either. Neither does Arizona's A.R.S. § 15-241, which sets out the indicators the annual achievement profile must include but says nothing about how those indicators must be weighted across schools.

So the State Board has discretion, subject only to A.R.S. § 15-241(E)'s requirement that the methodology be developed using a "researched-based methodology." If floating weights are supported by systematic and objective application of statistical and quantitative research principles, the State Board can adopt them.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Arizona's school accountability framework has been amended several times since 2018 (the opinion notes 2018 Ariz. Sess. Laws ch. 275 was just enacted). Federal ESSA regulations may have been further revised. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, threshold, or methodology mentioned here.

Historical context: what the opinion meant in 2018

For the State Board of Education

The opinion gave the State Board a clean legal green light. After the 2017 CRA disapproval, there was real uncertainty about whether the federal floor still constrained state methodology choices. The AG's reading: no, that constraint disappeared with the 2016 regulation. The State Board could move forward with floating weights as part of its A through F grading formula.

For the Arizona Department of Education

ADE designs the annual achievement profile criteria, subject to State Board adoption. The opinion confirmed ADE's design space included floating weights, as long as the chosen methodology met the research-based standard. That gave ADE more flexibility to design grading formulas that were responsive to school characteristics.

For school district superintendents

The opinion was a heads-up that the grading rules might shift in their direction. A high-poverty district where most students started below grade level had a stronger interest in growth-weighted grading than in proficiency-weighted grading; floating weights would let the methodology recognize that. A high-performing affluent district had the opposite interest. Both could see how the floating-weight system might affect their letter grades.

For charter school operators

Same dynamics as for districts. Charter schools that served high-poverty populations could see growth-weighted grading as fairer; those with selective enrollments and high baseline proficiency might prefer proficiency weighting. The opinion did not take a position on the policy merits.

For education policy advocates

The opinion is interesting as a procedural artifact. It documents the Congressional Review Act's effect on state regulatory flexibility: by killing a federal rule, Congress also killed a federal floor that would have constrained state policy choices. That effect cuts both ways depending on the rule and the policy goals.

For parents reading school grades

The opinion explained why two schools with similar student outcomes might end up with different letter grades: under floating weights, the same underlying performance would be evaluated against different weightings if the schools' student populations differed.

Common questions

Q: What is "academic progress" or "growth"?
A: Academic progress, per A.R.S. § 15-241(K), means "measures of both proficiency and academic gain." For purposes of this opinion, "growth" has the same meaning as academic gain: how much students improved from one measurement to the next, separate from where they ended up.

Q: What are "floating weights"?
A: A school accountability methodology in which the relative weight given to different performance indicators (e.g., proficiency vs. growth) varies based on school characteristics. The weights "float" rather than being fixed.

Q: Why did the U.S. Department of Education try to ban floating weights in 2016?
A: The agency's stated reason: without uniform weighting across schools in a grade span, "the methodology for differentiating schools and identifying them for support and improvement could be unreliable from district to district, or worse, biased against particular schools or set lower expectations for certain schools, based on the population of students they serve." 81 Fed. Reg. 86076, 86130.

Q: How did Congress kill the 2016 regulation?
A: Under the Congressional Review Act (5 U.S.C. § 801), Congress has 60 days after a regulation is submitted to enact a joint resolution of disapproval. A simple majority in both houses suffices (resolutions of disapproval cannot be filibustered in the Senate, which lowers the bar significantly). When such a resolution passes and the President signs it (or fails to veto), the regulation "shall have no force or effect" (§ 802(a)) and the agency cannot reissue it "in substantially the same form" (§ 801(b)(2)).

Q: Could the U.S. Department of Education try again with similar rules?
A: Per 5 U.S.C. § 801(b)(2), no. The CRA bars the agency from reissuing a substantially-similar rule. The Department would have to write a meaningfully different rule or get Congress to pass new legislation directly authorizing floating-weight prohibitions.

Q: Does Arizona's statute (A.R.S. § 15-241) require equal weighting?
A: No. Section 15-241 specifies the indicators that must be included in the annual achievement profile but says nothing about how those indicators must be weighted across schools. The State Board has discretion subject only to the research-based methodology requirement.

Q: What does "researched-based methodology" mean under § 15-241(E)?
A: The statute defines it (in the context of methodology development) to involve systematic and objective application of statistical and quantitative research principles. Floating weights, if supported by such research, fit within this requirement.

Q: Did 2018 legislation change anything?
A: The opinion notes that 2018 Ariz. Sess. Laws ch. 275 amended § 15-241 with changes effective on or about August 3, 2018, but it did not change the analysis on floating weights.

Background and statutory framework

A through F school grading in Arizona

Under A.R.S. § 15-241, the Arizona Department of Education compiles an annual achievement profile for each public school and LEA, and the State Board of Education uses that profile to assign A through F letter grades. § 15-241(F).

Section 15-241(D) lists the required academic performance indicators:
- Multiple measures of academic performance, as determined by the State Board
- Academic progress on statewide English language arts and mathematics assessments
- Academic progress on English language learner assessments
- Progress toward college and career readiness for schools and LEAs offering grades 9-12

Section 15-241(E) gives ADE responsibility (subject to State Board adoption) for setting the criteria using a research-based methodology that "include[s] the performance of pupils at all achievement levels, account[s] for pupil mobility, account[s] for the distribution of pupil achievement at each school and [LEA] and include[s] longitudinal indicators of academic performance."

The statute does not address how the indicators must be weighted, leaving that to the State Board.

The federal layer: ESSA and the disappeared regulation

The Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESSA), provides federal funding to state educational agencies. To get the funding, states must submit a state plan that meets 20 U.S.C. § 6311's requirements. § 6311(b)(2) lays out detailed requirements for academic assessments but does not address indicator weighting.

In November 2016, the U.S. Department of Education promulgated 34 C.F.R. § 200.18 to implement § 6311(b)(2). The regulation's § 200.18(b)(3) required uniform weighting across schools within each grade span. 81 Fed. Reg. 86076, 86227 (Nov. 29, 2016).

In March 2017, Congress passed (and the President signed) Pub. L. No. 115-13, 131 Stat. 77, a joint resolution of disapproval under the Congressional Review Act. The 2016 § 200.18 had no force or effect. The Department of Education then promulgated rules reverting to the pre-2016 version, which does not address floating weights. 82 Fed. Reg. 31690 (July 7, 2017).

The Congressional Review Act

5 U.S.C. § 801 requires agencies to submit new rules to Congress, with a 60-day window for Congress to disapprove. A joint resolution of disapproval, once signed (or with veto overridden), strips the rule of force and effect (§ 802(a)). The agency cannot reissue a "substantially similar" rule (§ 801(b)(2)) without new statutory authority.

Citations and references

Statutes and regulations:
- A.R.S. § 15-241 (school accountability profile and grading)
- 20 U.S.C. § 6311 (ESSA state plans)
- 5 U.S.C. § 801 (Congressional Review Act submission)
- 5 U.S.C. § 802(a) (effect of joint resolution of disapproval)
- 34 C.F.R. § 200.18 (school accountability indicators regulation)
- Pub. L. No. 115-13, 131 Stat. 77 (2017) (CRA disapproval)
- 2018 Ariz. Sess. Laws ch. 275 (later amendment to § 15-241)

Source

• Landing page: https://www.azag.gov/opinions/i18-007-r17-015
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I18-007.pdf

Original opinion text

To:

Paul Boyer

Arizona House of Representatives

Question Presented

Can the Arizona State Board of Education include "floating weights" within its A through F School Accountability Plan?

Summary Answer

Yes. Under previous federal regulations, floating weights were not permitted to be used in States' school accountability plans. Congress, however, subsequently disapproved those regulations pursuant to the Congressional Review Act. Presently, no federal regulation governs the question and the relevant federal and state statutes do not bar floating weights. Thus, the State Board of Education may choose to include floating weights within its A through F School Accountability Plan.

Background

In 2016, the Arizona Legislature substantially amended Arizona Revised Statutes ("A.R.S.") § 15-241 governing public school and local education agency ("LEA") accountability. Section 15-241 requires the Arizona Department of Education (the "Department") to "compile an annual achievement profile for each public school" and LEA that "shall be used to determine a standard measurement of acceptable academic progress." A.R.S. § 15-241(A), (C).

The annual achievement profile is used to give each school and LEA an A through F letter grade. A.R.S. § 15-241(F). The Department determines the criteria used to compile the annual achievement profile, subject to final adoption by the State Board of Education (the "State Board"), using a "researched-based methodology." A.R.S. § 15-241(E). The statute directs the Department to develop the methodology "in collaboration with a coalition of qualified technical and policy stakeholders" and to "include the performance of pupils at all achievement levels, account for pupil mobility, account for the distribution of pupil achievement at each school and [LEA] and include longitudinal indicators of academic performance." Id.

The A through F letter grade system takes into account both the academic proficiency of students in a school or LEA and their growth or improvement. These factors may be weighted equally across all schools or differently at each school, based on the characteristics of a school's student body. The latter system is referred to as a "floating weight" system. In a floating weight system, growth may be weighted more heavily if most of a school's students are behind and need to reach proficiency. For another school, proficiency may be weighted more heavily if most of that school's students are proficient at the beginning of the measurement period. Thus, the weight "floats" between growth and proficiency based on the characteristics of a school.[1]

When the State Board was considering the criteria for the A through F School Accountability Plan in early 2017, a recently adopted federal regulation required that States, "[w]ithin each grade span, afford the same relative weight to each indicator among all schools . . . ." Elementary and Secondary Education Act of 1965, as Amended by the Every Student Succeeds Act—Accountability and State Plans, 81 Fed. Reg. 86076-01, 86227 (Nov. 29, 2016) (Notice of Final Rulemaking re inter alia 34 C.F.R. § 200.18(b)(3)) (the "2016 Version of § 200.18"). Under this regulation, States could not incorporate a floating weight system into their school accountability plans. Congress, however, disapproved that regulation on March 27, 2017, pursuant to the Congressional Review Act and it did not take effect. Elementary and Secondary Education Act of 1965, Pub. L. No. 115-13, 131 Stat 77 (2017); see also 5 U.S.C. § 801(b)(1). The United States Department of Education has since promulgated rules that reinstate the version of the rule in existence before the Congressional disapproval of the 2016 Version of § 200.18. See 82 Fed. Reg. 31690-01, 31692 (July 7, 2017).

Analysis

ARIZONA LAW REGARDING THE A THROUGH F SCHOOL ACCOUNTABILITY PLAN DOES NOT ADDRESS USE OF FLOATING WEIGHTS.

Arizona Revised Statutes § 15-241 governs the components of each school or LEA's annual achievement profile, which is used to assign A through F letter grades. A.R.S. § 15‑241(F) ("The annual achievement profile shall be used to determine a school and [LEA] classification based on an A through F letter grade system adopted by the state board of education.").[2] The annual achievement profile must include the following academic performance indicators: "[m]ultiple measures of academic performance . . . as determined by the state board of education," "[a]cademic progress on statewide assessments . . . in English language arts and mathematics," "[a]cademic progress on . . . English language learner assessments," and "[p]rogress toward college and career readiness for all schools and [LEAs] that offer instruction in any of grades nine through twelve." A.R.S. § 15-241(D). Subject to adoption by the State Board, the Department is responsible for "determin[ing] the criteria for each school and [LEA] classification label using a researched-based methodology." A.R.S. § 15‑241(E). "The methodology developed . . . shall include the performance of pupils at all achievement levels, account for pupil mobility, account for the distribution of pupil achievement at each school and [LEA] and include longitudinal indicators of academic performance." Id.

Nothing in A.R.S. § 15-241, however, addresses the weight to be assigned to any of the academic performance or progress indicators included in the annual achievement profile. Nor does the statute address whether the weights assigned must be the same from school to school. In short, if "systematic and objective application of statistical and quantitative research principles" support the use of floating weights, the State Board may incorporate them into the A through F School Accountability Plan. Id. (defining "researched-based methodology").

CURRENT FEDERAL REGULATIONS DO NOT BAR USE OF FLOATING WEIGHTS IN THE A THROUGH F SCHOOL ACCOUNTABILITY PLAN.

The Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act, provides federal funding to state educational agencies. One of the requirements for this funding is submission of a state plan that meets the requirements of 20 U.S.C. § 6311. The state plan "shall demonstrate that the State educational agency, in consultation with local educational agencies, has implemented a set of high-quality student academic assessments in mathematics, reading or language arts, and science." 20 U.S.C. § 6311(b)(2)(A). 20 U.S.C. § 6311(b)(2) sets forth detailed requirements for these academic assessments. It does not, however, address the issue of floating weights.

In 2016, the U.S. Department of Education proposed a revised regulation, 34 C.F.R. § 200.18, to implement 20 U.S.C. § 6311(b)(2). The regulation would have barred floating weights,[3] but Congress rejected the agency's proposal. Under the Congressional Review Act, an agency promulgating a rule must submit to Congress: (1) "a copy of the rule," (2) a concise general statement relating to the rule," and (3) "the proposed effective date of the rule." 5 U.S.C. § 801(a)(1)(A)(i)–(iii). Within 60 days of submission to Congress, a majority of both Houses may enact a "joint resolution of disapproval" of the proposed regulation. 5 U.S.C. § 801(b)(1). The effect of such disapproval is that the regulation "shall have no force or effect." 5 U.S.C. § 802(a). That is exactly what happened with the 2016 Version of § 200.18. Pub. L. No. 115-13, 131 Stat 77 (2017). As a result, the prior version of the regulation is again in effect and the U.S. Department of Education is barred from reissuing its revised regulation "in substantially the same form." 5 U.S.C. § 801(b)(2).

The Congressional Review Act's effect on the Department of Education's proposed 2016 regulation resolves the question presented in this Opinion. Because Congress rejected the Department of Education's only proposed prohibition on floating weights, neither the current version of 34 C.F.R. § 200.18 nor the statute that it implements, 20 U.S.C. § 6311(b)(2), presents any barrier to the use of floating weights.

Conclusion

In sum, the State Board, with the assistance of the Department, has discretion and authority to adopt an A through F School Accountability Plan that meets the requirements of A.R.S. § 15-241. Neither that statute nor federal law governing such plans bars the use of floating weights as a component of the plan. As such, if floating weights are supported by a researched-based methodology, the State Board has discretion to incorporate them into its A through F School Accountability Plan.

Mark Brnovich

Attorney General

[1] "Academic progress" means "measures of both proficiency and academic gain." A.R.S. § 15‑241(K). For purposes of this Opinion, "growth" has the same meaning as academic gain.

[2] In 2018, the Legislature further amended A.R.S. § 15‑241. See 2018 Ariz. Sess. Laws ch. 275, § 1. Those changes, which will become effective on or about August 3, 2018, do not affect the analysis in this Opinion.

[3] As previously mentioned, the 2016 Version of § 200.18(b)(3) provided that States must "[w]ithin each grade span, afford the same relative weight to each indicator among all schools." 81 Fed. Reg. 86076-01, 86227 (Nov. 29, 2016). In its response to comments on the 2016 Version of § 200.18, the Department of Education stated that the regulation required uniform weighting of indicators within each grade span because without it, "the methodology for differentiating schools and identifying them for support and improvement could be unreliable from district to district, or worse, biased against particular schools or set lower expectations for certain schools, based on the population of students they serve." Id. at 86130.