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Published in Print: April 17, 2002, as States, Ed. Dept. Reach Accords on 1994 ESEA

States, Ed. Dept. Reach Accords on 1994 ESEA

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Just days before a deadline this month mandated by Congress, the Department of Education signed binding compliance agreements with several states that lag far behind in meeting federal requirements on standards and testing dating back to 1994.

Already about a year behind what turned out to be very soft deadlines, those states—Alabama, Idaho, Montana, and West Virginia—plus the District of Columbia now have an extra three years to comply fully. If they fail to meet that goal, or a series of milestones along the way, they risk the loss of federal aid under the Elementary and Secondary Education Act.

That is not to say that all other states have met the 1994 ESEA requirements. A majority of them are still playing catch-up.

As of last week, 19 states had won full approval by the Education Department for their standards and assessment systems. Beyond the five with compliance agreements, the remaining 27 states and Puerto Rico are operating under waivers that give them extra time, ranging from one to three years.

In effect, many states are still working to reconcile their education systems with the 1994 ESEA, even while they grapple with a new set of requirements on testing and accountability from the "No Child Left Behind" Act of 2001, the latest reauthorization of the ESEA. While some see the missed deadlines from 1994 as a troubling harbinger for the new round of requirements, Education Department officials insist that they will take a tough stand.

The agency may not have much choice. Disappointed with slow progress on core elements of the 1994 law, Congress wrote some stipulations into the new law. For one, it set a firm deadline of April 8—90 days after President Bush signed the new law—beyond which no state could be granted additional time to meet the 1994 requirements. That helped spur several states and the department to finish up compliance agreements in recent weeks.

Thanks to the new law, the department may also find itself doing something it's never done before: withholding money from states for noncompliance with the ESEA. Despite the coast-to-coast procrastination, no laggard state has ever lost a dime of federal aid for not meeting ESEA requirements. The new ESEA mandates financial penalties for states that fail to fulfill their promises regarding the 1994 law. In such cases, the department must withhold 25 percent of a state's administrative funds under the federal Title I program.

For a big state like California, that could amount to as much as $4 million this fiscal year. For most of the states with compliance agreements, such as Alabama and Montana, the total penalty would be far less: up to $100,000.

But the agency could opt to withhold far more than the law requires, department officials say.

Extinction of Extensions

Considerable disagreement remains about why so many states are still behind schedule on the 1994 provisions on standards and testing. Some observers have complained that the Clinton administration did not get serious about enforcement until the tail end of President Clinton's tenure. At the same time, some states have been criticized for dragging their feet.

But the nature of the requirements themselves was certainly an important factor. The 1994 law said states must devise challenging academic standards, student assessments aligned with those standards, and accountability systems to help ensure the standards were met. Moreover, a state's system of standards and assessments was to apply to all its public school students. Ultimately, the department opted against requiring all states to submit final accountability systems for approval.

Even so, many states faced big changes.

The General Accounting Office, Congress' investigative arm, just this month put out a new report on 1994 compliance issues. The report says that most often, states still out of compliance have struggled with the requirements to test all students, including those with limited English proficiency, and to report data by subgroups of students. It adds that "some also have more intractable problems, such as assessments that are not aligned with state standards."

The GAO study also sought to glean lessons from states that have fully complied with the law.

Susan B. Neuman, the Education Department's assistant secretary for elementary and secondary education, said she is pleased with the progress the administration has made and confident that all states would meet the revised deadlines they negotiated for complying with the 1994 mandates.

"One of the reasons is that we have given them strong indication that we will not approve any [new] extensions," she said. Ms. Neuman noted that in a couple of instances, states that had already received extensions requested still more time. But the department has been firm in rejecting such requests, she said.

"We have told states who have requested an extension, 'no,' ... but then we've worked with them in a technical-assistance model," she said.

Ms. Neuman stressed that 1994 compliance issues would not be pushed aside in favor of the newly reauthorized law. In fact, she said, the department is working to connect the compliance challenges of 1994 with those stemming from the new ESEA to make sure that states meet both sets of mandates in a timely fashion.

In some ways, the requirements are complementary. For example, the new law calls for more frequent statewide assessments to build on those mandated by the 1994 ESEA.

While the states that have just signed compliance agreements now have some breathing room—provided they meet the list of interim deadlines in their detailed compliance agreements—the final compliance deadlines for some other states come up sooner.

For example, waivers for Kentucky and Utah expire in June; those for Florida, Illinois, and Washington state expire in December.

In general, the department has required compliance agreements in cases where states were especially far behind in meeting the 1994 requirements, and where federal officials had reason to doubt whether the state would meet the requirements in a timely way, if ever.

But other than the heightened publicity from compliance agreements—they require a public hearing in the state, and the signed agreement is published in the Federal Register—Ms. Neuman suggested there is little difference between that approach and the timeline waivers. In both cases, states are expected to meet a set of milestones and multiple deadlines on the path toward full compliance, and in both the department is prepared to withhold federal aid if need be.

Wishful Thinking?

Some eyebrows shot up when the Education Department put out a press release last week that seemed to imply that the job of securing compliance with the 1994 mandates was finished. The headline read: "All States Now in Compliance With 1994 ESEA, Paige Says," with a subheading that added, "Fewer than half were in compliance with law when Paige took office."

A reader must journey several paragraphs into the release to learn that a majority of states still have not actually met the standards and testing requirements, but have simply worked out agreements promising to do so.

In fact, the roster of states granted full approval for their standards and assessment systems has grown from 11 at the end of the Clinton administration to 19 now. New Hampshire and Connecticut graduated to that list within the past two weeks. In addition, department officials last week indicated that New York's final approval was imminent.

Dianne M. Piché, the executive director of the Washington-based Citizens' Commission on Civil Rights, a private watchdog group, suggested the press release may have been more an effort by department leaders "to put a good spin on their first year in office and their efforts to secure all the paper required of the states. ... But paperwork doesn't constitute full compliance."

That said, Ms. Piché added that she believes the administration has worked hard to push states to comply with the 1994 law. She cautioned, however, that it might be overly optimistic to expect every state to meet its promises.

"I would be very surprised if all states were in compliance by the deadlines set," she said, noting the complexity of the issues, the financial costs of testing, and the political challenges in different states.

"A lot of states still have a long way to go before they actually meet these requirements," added Michael Cohen, who was the department's assistant secretary for elementary and secondary education in the last year and a half of the Clinton administration. "It tells you a lot about the new requirements ... how big of a task it is to stay on top of states in a timely fashion."

Mr. Cohen said the department must be vigilant in making sure states do everything they have agreed to do.

Some education officials have their work cut out for them.

Phyllis P. McClure, a Washington-based education consultant who is an expert on Title I, the ESEA's flagship program for disadvantaged students, pointed to the District of Columbia.

"They're basically starting from scratch," she said.

Among other challenges, the District of Columbia must develop an entirely new assessment system aligned with its content standards for what children should learn by certain grades. It also must set performance standards—typically, testing thresholds that determine students' competency.

Alabama is also far behind, and has been working to overhaul its testing system to comply.

Catherine Moore, the Alabama Department of Education's federal programs coordinator, explained that until 2000, the state agency's hands were tied by a state law passed in 1995 that required an assessment and accountability system that was out of sync with federal law.

"That's what put us into this situation," she said.

Cathy W. Gassenheimer, the managing director of the A-Plus Education Foundation in Montgomery, Ala., an education advocacy group, said she was pleased that her state had entered into a compliance agreement with the federal agency.

"It's going to be a good thing for the state," she said. "It has provided an impetus to do the things that I do believe our state officials wanted to do. ... It's just made it a front-burner priority, rather than a back-burner issue."

Ms. Moore of the Alabama education department said she believes her state would meet its deadlines. Asked about the threat that federal aid would be withheld, she said she understood the need for such measures.

But she added: "We don't plan to come to that point."

Vol. 21, Issue 31, Pages 1,28-29

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