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Published in Print: November 28, 2001, as States Sluggish On Execution Of 1994 ESEA

States Sluggish On Execution Of 1994 ESEA

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Seven years after Congress last approved sweeping changes to a key federal education law, the final deadlines for compliance are past. Even so, many states still have not met core requirements of the Elementary and Secondary Education Act's 1994 reauthorization.

Thirty states have received or are on track to get waivers allowing them one to three additional years to comply fully with the law's mandates on statewide testing. Several others are so far behind that the Department of Education has told them they must enter into formal compliance agreements. And the department itself has opted to put off requiring all states to submit final accountability systems for approval.

But billions of dollars in federal aid deliverable on the condition that states meet the law's requirements have flowed to states unimpeded. With Congress now working on the final version of the current reauthorization of the ESEA—legislation that would add ambitious demands for expanded testing and stronger accountability pushed by President Bush—the work left unfinished from 1994 serves as a powerful reminder that enacting a law is only the first step.

"If Bush really wants to be the education president, he has to follow through ... with a serious enforcement effort," said Amy Wilkins, a policy analyst with the Education Trust, a Washington-based research and advocacy group. "The real test of his commitment to this is what happens after the Rose Garden [ceremony]."

But even before the new measure is signed into law, the Bush administration is handling compliance problems left over from 1994, when President Clinton signed the last reauthorization. Some Washington veterans suggest that the administration's decisions on enforcement of the 1994 law will send a clear signal when it comes to the new law.

That's the first place states will look for clues on the Bush administration's approach, said Michael Cohen, an assistant secretary for elementary and secondary education under Mr. Clinton who attempted something of an ESEA crackdown in that administration's last year.

"[The department's] ability to get states to implement whatever is included in the final ESEA reauthorization ... is going to be heavily dependent upon the extent to which states think there are consequences if they don't," he said.

What Went Wrong?

Assigning responsibility for the compliance problems with the 1994 ESEA is a complicated matter. Certainly, the nature of the requirements was a critical factor.

The law says states that receive money under the Title I program for disadvantaged students must develop challenging academic-content and performance standards, student assessments aligned with those standards, and accountability systems to help ensure the standards are met. Moreover, a state's system of standards and assessments is to apply to all its public school students.

The law set deadlines that spanned the past seven years. For example, states had to adopt final standards by the 1997-98 school year and final assessments by the 2000-01 school year.

"That was all very new stuff that you had to have the standards and had to have the assessments that measured the standards," said Gordon M. Ambach, who served as the executive director of the Council of Chief State School Officers from 1987 until earlier this year.

When the law was passed, many states did not have statewide academic standards, much less tests aligned with those standards. The law also required that state testing regimes include students with disabilities and students with limited English proficiency, demands that have proven particularly nettlesome for states.

"These have been immense changes," said Mr. Ambach. "In a highly decentralized system, those things take time."

A seismic shift in the political landscape also complicated matters.

Less than a month after President Clinton signed the revised ESEA, the GOP wrested control of Congress for the first time in four decades. Many of the newly ascendant GOP lawmakers—especially in the House— worked to reduce federal involvement in education. Some saw a chance to abolish the Education Department.

"The Clinton team was worried about just keeping the federal government in the game," said Jack Jennings, the director of the Washington-based Center on Education Policy and a former longtime aide to Democrats on the House education committee. "They thought that if they pressed hard on states to comply with the new law, they would be shaking the foundations of the federal role in education, and giving ammunition to the far right that wanted to eliminate any federal role."

Over time, some of the heat from Congress ebbed, as those early efforts to curtail the federal role in education failed. And today, with President Bush making education a signature issue, many Republicans on Capitol Hill appear to embrace an active federal role.

Congress aside, the Clinton administration—with a former Arkansas governor in the White House and former South Carolina Gov. Richard W. Riley running the Education Department—was not inclined to take a heavy-handed approach toward the states. The emphasis was not just on compliance, but on support and technical assistance, said Jim Kohlmoos, who worked in the department from 1993 to 1999, ultimately as the deputy assistant secretary for elementary and secondary education.

"When we went out to states and localities," Mr. Kohlmoos said, "we weren't there just to be policemen."

But some argue that the department strayed too far from the enforcement model.

In 1999, the Citizens' Commission on Civil Rights, a privately organized watchdog group in Washington, issued a report chronicling what it deemed a disappointing performance by the Clinton Education Department.

"[T]he Clinton administration, once a prime advocate of standards-based reform, has since had a massive failure of will and nerve," the report declared. "That failure has been manifested by a refusal to insist that states comply with fundamental provisions of the law, notably the requirement that a single set of high standards be established for all children in a state."

The report continued: "In the end, delays in implementation, faulty interpretations, and breaches in enforcement of the law became the order of the day."

As of January 2001, for example, only 28 states had performance standards that had received federal approval. That was about three years past the approval deadline.

That said, the Citizens' Commission and several state education experts suggest there was a notable shift during the last year or so of the Clinton administration, when the department began to take a more aggressive stance..

That coincided with Mr. Cohen's tenure as the assistant secretary responsible for the ESEA. Mr. Cohen said that when he took over the job in November 1999, he realized there was a problem.

"It became very clear to me that there was a widespread assumption that the deadline for those [assessment] requirements would come and go, and nothing much would happen as a result," he said recently. He took every opportunity to let states know the department was serious about deadlines, he said, and worked closely with states to make sure they started taking necessary steps.

Federal officials made clear that laggard states either had to convince the department that they were on track toward compliance and receive a short-term waiver, or agree to enter into a compliance agreement. Any state that refused risked losing a portion of its Title I aid.

While the department's more aggressive actions on the law's assessment provisions have been widely applauded, some observers still complain that the agency neglected another key part of the law: the accountability requirements.

Under the ESEA, the Education Department by 2000-01 was to have reviewed states' final accountability systems, including their definitions of "adequate yearly progress," a measure of how fast states must improve performance on assessments. But the department still has not done so.

Current and former department officials offer several reasons for the delay, including concern that without fully approved assessment systems in many states, it made little sense to judge accountability systems. Moreover, with the expectation that the newest version of the ESEA will have a lot to say about adequate yearly progress, officials decided to defer action until the ESEA's completion.

Even without final accountability plans approved, states and districts were required to identify schools needing improvement and take actions to turn them around. But a department report released in January found that more than half the schools categorized as low-performing during the 1999- 2000 school year reported receiving no extra help.

Bush Inherits Problems

With the change of political leadership in January 2001, a central question was how the new administration would handle the compliance challenges left over from 1994.

That was particularly the case on standards and assessments, where the former administration had laid much groundwork. When Mr. Clinton left office, the Education Department had issued decisions about the compliance status of 34 states.

Recent actions suggest the department under Secretary Rod Paige is taking the task seriously.

Currently, 16 states have fully approved standards and assessment systems. Twenty-six have been granted waivers of one to three years, and four others appear on track to receive waivers. States that have waivers must report quarterly on their progress, and the department reserves the right to terminate a waiver.

The thorniest situation concerns the handful of states that have been informed that they must enter into compliance agreements to continue receiving Title I aid. When President Clinton left office, three states were in that category, though none had actually entered into such an agreement.

The list now contains Alabama, Idaho, Montana, and West Virginia, plus the District of Columbia and Puerto Rico. Just this month, the administration reversed two earlier decisions under Mr. Clinton, granting Wisconsin and California waivers based on additional evidence.

Thomas M. Corwin, the acting deputy assistant secretary for elementary and secondary education, said a decision on whether to grant a waiver or require a compliance agreement boils down to the likelihood that a state will meet extended deadlines.

"Basically, we're willing to grant them a timeline waiver if they have a clear timeline, a strategy in place, for coming into full compliance for the most part within a couple of years," he said.

"If it looks like they're not going to get there, maybe ever, maybe not for years," Mr. Corwin said, "then ... it doesn't make sense to give them a waiver, because that's not going to get you anywhere."

A compliance agreement, meanwhile, is a legal document negotiated between the department and a state education agency setting forth a step-by-step process, with strict deadlines along the way, for how the state will comply with the law. Such an agreement, published in the Federal Register, can last up to three years.

Nearly all the states that have been told they must enter into compliance agreements have appealed the decision. With the exception of Wisconsin and California, however, it appears that all others will still have to enter such agreements.

California Scrutiny

The California decision in particular is drawing scrutiny. The state was first notified that it must enter into a compliance agreement one day before President Clinton left office. California officials opposed the decision and worked aggressively to persuade the federal department to change its mind, submitting further evidence on numerous occasions.

"We're not pleased with the decision" to grant a waiver, said Dianne M. Piche, the executive director of the Citizens' Commission on Civil Rights. "California is seriously out of compliance with Title I, and the ways in which they are out of compliance are not trivial."

She noted that the state receives more Title I money than any other. "It's a very important state for compliance because of the sheer number of children and the number of dollars," she said.

Montana is among the states that may have the toughest time complying with the law.

"[Finding] the financial resources to do this kind of ambitious assessment plan has been a real challenge," said B.J. Granbery, the state Title I director in Montana. "The last legislative session did not appropriate any funding, zero funds, for any kind of statewide assessment. It does put us in a bind."

"It's been very difficult for state departments, particularly in the states that have not had strong economic growth," said Wayne G. Sanstead, the state superintendent in North Dakota, which has received a two-year waiver for its assessment system.

Mr. Sanstead said he is especially worried about the ESEA requirements for more testing that Congress is now finalizing.

"My great concern is that perhaps they're asking us to do too much with too little," he said.

Mr. Corwin of the federal Education Department suggested that compliance problems on matters such as assessments can be complicated by the multiple levers of power in a state.

"Clearly, there are a lot of moving parts in a state around this issue," Mr. Corwin said.

Chester E. Finn, Jr., the president of the Thomas B. Fordham Foundation, argues that prompting dramatic shifts in education may be more than the federal bureaucracy can manage.

"There is huge resistance to change ... and the federal implementation mechanisms don't overcome that very well," said Mr. Finn, who was an assistant education secretary during the Reagan administration.

The compliance tool of last resort is financial penalties. But if history is any indication, states may have little to fear. According to the Education Department, no Title I funds have ever been withheld from a state for noncompliance with the program's requirements.

"It's hard to take money away from any state," said Marshall Smith, who served at the department throughout the Clinton administration, including a stint as the acting deputy secretary.

"The argument against it is you're taking away money from poor kids. ... There's a little bit of a cut-off-your-nose-to-spite-your-face phenomenon," Mr. Smith said. "We never worked through that in the way we should have."

"Nobody believes that money will actually be terminated," said Phyllis P. McClure, a private consultant and Title I expert. "These states, they know the game."

She argues that even starting the lengthy process required to withhold federal money would have a "therapeutic" effect. "If they see the federal government is serious, they will come into compliance so fast you won't believe it," she said.

Ms. McClure said the only instances she recalls in which Title I aid was withheld involved Southern school districts that lost federal funds in the late 1960s and early 1970s because they refused to desegregate.

Options Limited?

But Ms. Granbery from Montana argued that financial penalties would not help.

"Without those funds, there won't be any compliance at all," she said.

The department's options in handling noncompliance with the 1994 requirements may be more limited under the reauthorization now pending in a House-Senate conference committee, according to Lindsey Kozberg, the chief spokeswoman for Secretary Paige.

While stressing that the department intends to treat states as partners, she said "the department in all likelihood will not have some of the flexibility it had in 1994 to grant timeline waivers and compliance agreements."

As drafted, the House version of the 2001 bill says that if a state fails to meet the 1994 ESEA deadlines, the department "shall withhold 25 percent" of the state's administrative funding under Title I. The bill also explicitly says there will be no additional waivers or compliance agreements to extend those deadlines.

Notably, the language is a bit softer when it comes to some deadlines for the new assessment and accountability requirements, substituting the words "may withhold" funds for "shall withhold."

Ultimately, Mr. Cohen advises the Bush administration not to underestimate the task of implementing the new law. That task will require high-level attention at the department, he said, and contact with the top levels of state government.

"The secretary and his senior people are going to have to spend a lot of time talking to governors, talking to legislatures, both nationally and one-on-one in states to help them understand these requirements and what it takes to meet them," Mr. Cohen said.

"And," he added, "how the department is prepared to help them."

Vol. 21, Issue 13, Pages 1,26-27

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