States would have significant flexibility in meeting new federal testing requirements, under draft regulations released by the Department of Education last week.
States could use a combination of state and local assessments. States likewise could use either tests designed to assess students’ grasp of state standards or tests pegged to national norms. But if states did use what are called norm- referenced tests, they would have to alter them to reflect fully the states’ standards.
Groups representing state officials welcomed the draft rules on testing. But the plan drew fire from critics for potentially creating, as one congressional aide put it, a “patchwork system” of assessments.
The draft regulations were released in preparation for a “negotiated rulemaking” session on the issues of standards and assessment raised by the newly reauthorized Elementary and Secondary Education Act, which contains the testing mandates.
But the department said it would not include the topic of “adequate yearly progress” —or how states determine the gains schools and districts must make each year to meet federal requirements—in negotiated rulemaking, as it had considered doing.
Susan B. Neuman, the assistant secretary for elementary and secondary education, said in an interview last week that, based on the comments the department had received from five focus groups, “adequate yearly progress as it is written in the law is pretty clear. It was not something that needed a great deal of negotiation.”
As a result, she said, the department has decided to issue regulations for adequate yearly progress separately, an approach that would allow their release in July.
A top aide to Rep. George Miller, D- Calif., one of the primary authors of the ESEA, said: “It’s encouraging that they decided not to renegotiate adequate yearly progress. That signals an intent, we hope, to take the statute at face value and not water it down.”
But he added: “We are disappointed that [the draft regulations] seem to imply a willingness to allow a patchwork system of local assessments. That seems at odds with both the letter and the spirit of the law, and would be a step backward from where we are currently.”
The process known as negotiated rulemaking is designed to allow more discussion of complex or controversial issues than is commonly provided during the public-comment period required for all proposed federal regulations. The negotiated rulemaking on issues of standards and assessment is required by the “No Child Left Behind” Act of 2001, the measure signed by President Bush in January that reauthorized the ESEA.
Last week, the Education Department announced the 21 members of the negotiated-rulemaking committee, which will meet in Washington March 11-13 and March 19-20 to help review and revise the draft rules on standards and assessment.
Following those meetings, department officials hope to release proposed regulations in the Federal Register by May, for public comment, and final regulations by the end of August.
‘Proceed Cautiously’
Some education analysts, meanwhile, expressed disappointment that the Education Department left discussion of “adequate yearly progress” off the negotiating table.
“It’s a mistake on their part,” said Jack Jennings, the director of the Center on Education Policy, a Washington think tank, and a former education aide to House Democrats, “because this is the key part of accountability, and these are the issues that are at the heart of the bill, and these are the issues that school people are most worried about.”
“I’m disappointed,” said Bruce Hunter, the associate executive director for public policy for the Arlington, Va.-based American Association of School Administrators, “because that’s the heart of the evaluation system.”
But he added: “If they wanted [negotiated rulemaking] done in five days rather than five years, maybe they made the right decision.”
Congressional efforts to define adequate yearly progress were among the most difficult aspects of the ESEA reauthorization process last year. While some lawmakers wanted the law to detail how states should set annual improvement targets for schools and districts, others were concerned that the formulas would lead to the overidentification of schools as failing.
Although many people said last week that the requirements for adequate yearly progress remain confusing, some expressed relief that the department would not open up the topic to further negotiation.
“I’m very pleased that they’re not going to get into adequate yearly progress in this negotiated rulemaking,” said William L. Taylor, the acting chairman of the Citizens’ Commission on Civil Rights, an advocacy group based in Washington.
“I don’t see how it can get simplified in the rulemaking process,” he said of the issue. “It would probably get more complicated, which would not be particularly helpful.”
“To the extent that this leaves the door open to some experimentation, and trial and error, in different states, that sounds to me like a positive thing, because I’m not sure that we do know one single way to [measure adequate progress],” said Thomas J. Kane, a professor of policy studies and economics at the University of California, Los Angeles, who had analyzed some of the annual-progress formulas considered by Congress during the legislative debate.
That view was shared by the Education Leaders Council, a Washington-based group of state schools chiefs, governors, board members, and others that has been active on issues of educational accountability. In a Feb. 19 letter to the Education Department, the group urged “maximum flexibility” in carrying out the law’s provisions, particularly regarding adequate yearly progress.
"[W]e would advise those involved in the rulemaking and guidance process to proceed cautiously, for the very vagueness of the law—this ‘specific ambiguity'—is actually an asset, as it leaves each state room to experiment within its own strengths and limitations,” wrote Lisa Graham Keegan, the chief executive officer of the Education Leaders Council and a former state schools superintendent in Arizona.
“Flexibility” was the watchword for many of those submitting comments about the negotiated-rulemaking process.
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Both the National Governors Association and the Council of Chief State School Officers also pressed for flexibility in interpreting the letter of the law. They applauded the department’s intention to issue regulations “only where absolutely necessary,” and instead to rely on “nonregulatory” or nonbinding guidance to states.
At the same time, they noted that such guidance would be helpful sooner rather than later. States are required by this spring to submit comprehensive plans to the Education Department detailing how they will comply with the law. That deadline will come even before the final regulations are issued.
How Much Leeway?
Responses to the draft regulations regarding state testing systems were also mixed. Some people are concerned that the rules would result in a confusing mix of test results that would not yield comparable information.
“Everything we did in the bill was centered around the assumption that you have a statewide testing system,” said the aide to Rep. Miller, who is the ranking Democrat on the House Education and the Workforce Committee. Without using a statewide test, he said, it would be difficult to compare the performance of a state’s students on its own test against their performance on the National Assessment of Educational Progress, a congressionally financed testing program, as a check to see whether state standards were rigorous enough.
“If you have local assessments, you’ve lost that,” the aide said. “To me, and I know to Congressman Miller, that contradicts the whole intent of the reform effort.”
Under the law, states must test every student in grades 3-8 annually in reading and mathematics by the 2005-06 school year, and at least once in those subjects in grades 10-12. By 2007-08, states also must test students in science at least once at each of three points during their school careers: grades 3-5, 6-9, and 10-12.
Only nine states currently administer tests written specifically to their standards in both math and reading in each of the grades from 3rd through 8th. (“Testing Systems in Most States Not ESEA-Ready,” Jan.9, 2002.) But the draft rules are in line with the views of groups representing state leaders, which have advocated that states be permitted to use a combination of state and local tests, and criterion-referenced and norm-referenced tests.
“Criterion referenced” refers to tests designed to measure how well students have mastered the specific content in state academic standards. Norm-referenced tests are designed primarily to measure how students perform compared with a nationally representative sample of their peers.
State officials have expressed concern that they lack both the time and the money to develop standards-based tests in all the required grades.
“This is excellent, absolutely excellent,” Carnie C. Hayes, the director of federal-state relations for the CCSSO, said of the draft regulations on state testing systems. “That will go a long way to making this work with the different states.”
But others were less sanguine that the resulting testing systems would truly enable states to track progress across districts and schools, or provide comparable results from year to year.
“While there are lots of what appear to be, on their face, safeguards, it just makes you worry,” said Amy Wilkins, a policy analyst for the Washington- based Education Trust, a nonprofit group that works to raise the achievement of all students.
“Local assessments could undercut the power of standards and assessments as an equity tool,” she said, because it would be impossible to equate scores across districts.
But Ms. Newman emphasized that if states want to combine state and local tests, they’ll need “a tremendous amount of evidence” that the tests are rigorous and aligned with state standards.
