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Published in Print: February 2, 2005, as States Revive Efforts to Coax NCLB Changes

States Revive Efforts to Coax NCLB Changes

Some Legislators Seek Waivers Under Law

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Even before U.S. Secretary of Education Margaret Spellings was confirmed in her job on Inauguration Day, a few states began testing her pledge, made during Senate hearings, to work with them in carrying out the No Child Left Behind Act in a “sensible and workable” way.

In a letter to Ms. Spellings dated Jan. 14, Betty J. Sternberg, Connecticut’s commissioner of education, asked for greater flexibility in six areas of the law—including the ability to continue testing only in grades 4, 6, 8, and 10, instead of annually in grades 3-8 and once in high school as the federal law requires.

“I was really only reacting to her comments and taking them at face value,” Ms. Sternberg said in an interview last week. “I wanted to let her know that I’m very interested in continuing to work toward the goals of NCLB and, given her comments, hope that she might be open to considering some of the requests that we have made heretofore which were not approved.”

The Virginia board of education voted Jan. 19, the day before the secretary’s confirmation, to ask Ms. Spellings to exercise her authority to waive the law’s statutory and regulatory requirements in 10 central areas. Many of those requests had been rejected by Department of Education officials in the past.

Since legislatures in most states convened last month, lawmakers in at least nine states—Colorado, Connecticut, Idaho, Minnesota, Nebraska, North Dakota, Virginia, Vermont, and Utah—have introduced bills challenging various aspects of the law. And those measures are likely to mount. Last year, legislators in 31 states introduced bills seeking greater flexibility or more funding under the law, or limiting state participation in it, according to the National Conference of State Legislatures.

Jo Lynne DeMary, Virginia’s state superintendent of education, said the waiver requests from her state are based on two years’ worth of data about what is working—and not working—in carrying out the federal legislation. While state legislators are willing to give the board a chance to negotiate with federal officials about minimizing some of the law’s unintended consequences, she added, “we have a General Assembly, right now, that’s in session and that is looking at some rather drastic measures.”

At least eight bills have been introduced in the Republican-controlled Virginia legislature regarding the federal law. Six of them would direct the state board of education to seek a waiver from complying with specified provisions of the act.

One measure, Senate Joint Resolution No. 437, would ask Congress to amend the law to provide an automatic waiver of its school accountability provisions for states that have successfully increased student achievement through their own standards and accountability policies. Another would direct the legislature’s audit and review commission to examine the capacity of the state to meet the federal requirements.

Meanwhile, the Education Department has urged states that want to amend their accountability plans in time to affect the use of 2004-05 test data to submit those proposals by April 1.

“I know a lot of states are probably going to be submitting additional amendments and proposals,” said Scott Palmer, a partner with the Washington law firm of Holland & Knight who works with a number of states on education policy.

‘A Fairer Approach’

This school year marks the first time that states must raise the targets that schools must reach to make “adequate yearly progress” under the law. So far, only Missouri has asked for and received permission to lower its 2004-05 targets from what it had requested originally. The state has lowered its targets for the percent of students who must score at the “proficient” or “advanced” level on this spring’s tests from 38.8 percent to 26.6 percent in communication arts, and from 31.1 percent to 17.5 percent in mathematics. Commissioner of Education D. Kent King said the changes were made “to limit the negative consequences for schools across the state.”

Stan H. Johnson, Missouri’s assistant commissioner for school improvement, noted that the state has a high standard of proficiency. The same percent of 4th graders scored at the proficient level on the state reading test in 2003 as on the National Assessment of Educational Progress, the federal testing program. The state will now raise the targets in equal increments over 10 years, rather than having a big jump once every three years.

“We thought that this was a fairer approach to our school districts,” Mr. Johnson said.

Many of the bills introduced in statehouses so far this session challenge what lawmakers see as the federal government’s intrusion into state and local policymaking, particularly in states that were already making progress with their own school improvement plans.

“Vermont has worked hard to craft an education system that fits our unique circumstance and that has resulted in an excellent education system,” says House Bill 59. That proposal would order the state not to comply with the federal law’s provisions for more student testing, imposing consequences on schools that fall short of performance targets, and ensuring that teachers are “highly qualified.”

Local-Control Issue

“The No Child Left Behind Act not only changes our education policies,” the Vermont measure says, “it encourages us to redirect funds from programs that we have built over the years toward a few items that the No Child Left Behind Act uses to measure a successful school.”

In Colorado, Senate Bill 50 would permit a district to ignore the law and seek voter approval of a tax increase to replace the amount of federal money that would be withheld as a result of noncompliance. In North Dakota, House Bill 1365 would prevent the state schools chief from imposing any financial penalty or other punishment on a school or district whose board chooses not to follow the federal law.

And in Utah, where legislators last year threatened to opt out of the federal mandates, House Joint Resolution 3 asserts that Utah should use its own “proven system of student accountability” until and unless the federal government substantially amends the act, provides funding commensurate with its costs, and extends the waiver authority now granted under the legislation.

“The trend last year to try to get out of the No Child Left Behind Act fully wasn’t that successful,” said Scott Young, a senior policy analyst with the Denver-based NCSL, because states were unwilling to turn down “a big chunk of money, regardless of what percentage of the overall education funding it is.”

The new trend for 2005, he predicted, “is really going to be to work within the language of the law and use some of these tools, like the waiver provision and Section 9527, to really put an emphasis on the state accountability system as an alternative to No Child Left Behind.”

Waiver Provision

Section 9527 of the NCLB law says that nothing in the act authorizes the federal government “to mandate, direct, or control a state, local education agency, or school’s curriculum, program of instruction, or allocation of state or local resources, or mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.”

Section 9401 says that the U.S. secretary of education “may waive any statutory or regulatory requirement” of the act for states or districts that request such waivers, provided they show how the waivers would increase the quality of instruction for students or improve their academic achievement. (There are a few exceptions related to civil rights and funding provisions.)

Former Secretary of Education Rod Paige had made it clear that he wasn’t interested in granting waivers, and the federal department has made few attempts to encourage or allow states to use those provisions. Now, states are testing the waters to see whether Secretary Spellings shares his views. Virginia specifically cites the secretary’s waiver authority under Section 9401 in its request.

“We have never asked for anything under the waiver provision under Section 9401,” said Superintendent DeMary. “We felt that now that we have a better understanding of what the authority of the [federal] department actually is, that we needed to do that.”

But many of the changes requested by Connecticut and Virginia have been rejected by the Education Department in the past as undercutting fundamental provisions of the law. In addition to testing in alternate grades, Connecticut wants to track gains in individual students’ performance over time to judge schools, rather than relying on the percent of youngsters who score “proficient” or better on state tests in any given year.

Both Connecticut and Virginia also are seeking greater flexibility in how they test students with disabilities or those learning English. And both are looking for more leeway in the law’s accountability provisions for schools.

Connecticut, for example, wants to focus on supports—rather than penalties—for schools in the fourth year of being deemed in need of improvement.

Virginia wants to provide school choice and supplemental services only to individual students or subgroups in a school that did not meet performance targets, rather than to the entire school population. The state also wants to switch the order of the NCLB-prescribed penalties by allowing schools to offer supplemental services before giving parents the option of moving their children to other schools.

And it wants to identify schools for improvement only if they’ve missed their targets in the same subject and subgroup for two years in a row.

Ms. DeMary, the state schools chief, said she understands the need to be hard-nosed during the first few years after a law is passed, “because you’ve got to signal early on that this is real; it’s not going to go away.” But after two years of experience and data, she argued, Virginia agreed to tweak its reform measures to make them more meaningful and lasting, and the federal government should do the same.

Last week, a spokeswoman for the U.S. Department of Education said it is unlikely to reverse its stance on previously rejected requests, and that Secretary Spellings takes the same position on waivers as did Mr. Paige.

Peer Reviews Planned

The law also requires the federal Education Department to review and approve each state’s standards and assessment system. The first such peer reviews—scheduled for Feb. 16-19—could provide another sign of how flexible the department will be under Ms. Spellings’ leadership. Five states—Maryland, North Carolina, South Carolina, Texas, and West Virginia—are scheduled to take part in the first round.

In a letter to state schools chiefs last month, Assistant Secretary of Education Raymond J. Simon cautioned that if a state does not receive “full approval” or “full approval with recommendations” for its testing system by July 1, the department will place conditions on its receipt of fiscal 2006 Title I money, the largest source of federal funding for elementary and secondary education.

Vol. 24, Issue 21, Pages 1,29

Web Resources
  • The Department of Education's No Child Left Behind site posts information on flexibility and waivers, as well as policy letters to states regarding flexibility in implementing NCLB. See also more information on Section 9401 of the law, regarding waiver provisions.
  • Read letters from Assistant Secretary of Education Raymond J. Simon to state schools chiefs on the process and possible outcomes of the department's review system of state accountability plans. Such reviews are scheduled to begin in February 2005. (Requires Adobe Acrobat Reader)
  • The National Education Association posts a list of state legislative action calling for changes or waivers to the federal law.
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