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Published in Print: December 14, 2005, as Room to Maneuver

Room to Maneuver

The federal government has responded to criticism of the No Child Left Behind Act by giving states greater flexibility in how to comply. Analysts worry that the law’s purpose is being lost along the way.

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Since U.S. Secretary of Education Margaret Spellings announced last April that she would take a “common sense” approach to carrying out the No Child Left Behind Act, educators have been watching closely to see whether she keeps that promise.

The answer, according to observers, is yes—and no.

UPDATE ON NCLB
An Education Week Special Pullout Section: A Progress Report on the No Child Left Behind Act
Political Shifts Cloud Outlook for Renewal of Federal Education Law
States Confront Definition of 'Proficient' as They Set the Bar for Lots of New Test

“It’s definitely the right approach, “ said Scott R. Palmer, who helps lead the education policy team at the Washington-based law firm of Holland & Knight. “I think it remains a work in progress.”

As the ambitious federal law nears its fourth anniversary on Jan. 8, people following its progress say Ms. Spellings’ willingness to work with states has been a welcome shift from the relatively hard-nosed stance of her predecessor, Rod Paige. And it’s helped defuse at least some criticisms of the law at the state and local levels.

“You have to give a little credit where credit is due,” said Reg Weaver, the president of the 2.7 million-member National Education Association, which has sued the secretary over the statute. “I’m not going to say what the secretary has done is not a step in the right direction, because I think it is. But still more needs to be done.”

An Education Week analysis of amendments to state accountability workbooks, which detail how states are complying with the law’s testing-and-accountability provisions, shows that much of the flexibility granted by the federal Department of Education since April has consisted of extending agreements already reached with some states to others.

But the secretary also has tried to respond to critics and fend off changes to the law itself by relaxing rules for measuring the progress of special education students, extending the deadlines for some states to meet the law’s “highly qualified” teacher goals, and launching pilot programs that modify the law’s school choice and tutoring requirements for schools in need of improvement.

Most recently, on Nov. 18, Ms. Spellings announced that she would permit up to 10 states to take part in a pilot program enabling them to calculate progress under the federal law based on “growth models” that track the gains of individual students over time.

“She’s given the states better tools, or more opportunities, to do some things that would reduce the numbers of schools in need of improvement,” said Dianne M. Piché, the executive director of the Citizens’ Commission on Civil Rights, a Washington-based watchdog group that has been a strong supporter of the law. “To the extent that translates into a perception that NCLB is not so onerous and not so punitive, I think it does help in the field, and it does help with the public perception.”

But in the long run, Ms. Piché said, the changes won’t eliminate the deeper problem of a “large, gaping achievement gap” based on race and poverty, which the law was meant to address.

Her group has raised concerns, for example, that the growth-models program could lower expectations for the most disadvantaged youngsters.

Leeway Extended

Championed by President Bush and approved overwhelmingly by Congress in late 2001, the law is a reauthorization of the Elementary and Secondary Education Act, the landmark 1965 measure that greatly expanded federal aid for K-12 education.

But the No Child Left Behind law goes beyond previous reauthorizations by holding all public schools accountable for raising all students to academic proficiency by 2013-14. It requires states to test students in reading and mathematics annually in grades 3-8 and at least once during high school, beginning this school year.

To make adequate yearly progress, or AYP, which is a key measurement under the law, schools and districts must meet annual performance targets, based primarily on those test scores. The targets apply to their student populations as a whole and to subgroups of students who are poor, speak limited English, have disabilities, or are members of racial or ethnic minorities.

See Also
View the accompanying table, "School Ratings and Student Performance."
PDF version | Excel version

Schools and districts receiving federal Title I money for disadvantaged students are subject to increasingly serious sanctions if they miss the targets for two or more years. Initially, they must permit students to transfer to a higher-performing public school; then, they must offer eligible students free tutoring from a public or private provider. Eventually, such schools and districts are subject to “corrective action,” including, potentially, school closure.

The provisions on testing and accountability, in particular, have stirred resistance from states such as Connecticut and Utah, which have complained that federal funding is inadequate and that the federal government has overstepped its bounds by dictating the details of state accountability policies. Like the NEA, Connecticut is pursuing a court challenge over the law. Utah passed legislation this year that says its own state accountability system takes precedence over the federal law.

Since last spring, Secretary Spellings—who took office in January after serving as a White House domestic-policy aide during Mr. Bush’s first term—has granted new leeway in five specific areas by:

· Permitting states to calculate the progress of some students with disabilities using alternative assessments that are not pegged to a grade-level standard, the so-called “2 percent rule”;

· Allowing some schools and districts heavily affected by Hurricanes Katrina and Rita to create separate subgroups of displaced students for this school year only, and not count those students in any other subgroup in calculating progress under the federal law;

· Approving a pilot program in Virginia that lets several districts reverse the order in which public school choice and tutoring are offered to students in schools identified for improvement. The Education Department also has permitted a handful of urban districts to continue providing their own tutoring even if the districts themselves have been identified for improvement;

· Giving states an extra year to ensure that all of their classes in the core academic subjects are taught by “highly qualified” teachers, as long as they can show a “good-faith effort” in meeting the law’s requirements for such teachers; and

· Announcing the pilot program permitting as many as 10 states to use a growth model to measure school and district progress under the law.

But what’s most striking is the number of states that have taken advantage of already existing flexibility under the law to make it easier for schools and districts to make adequate progress.

Design Matters

For example, 23 states now require at least 40 students to be in a subgroup before it counts for accountability purposes. At least eight states also require each subgroup to constitute a minimum percent of the overall student enrollment before it counts in calculating AYP, until the subgroup reaches a certain size. And eight states have larger subgroup requirements for students with disabilities and those learning English.

The vast majority of states also now apply a statistical test known as a “confidence interval” that makes it easier for schools and districts to make AYP by creating a margin of error around performance results.

Half the states have created timelines for getting all students to the proficient level by 2013-14 that postpone steep increases in the improvement targets until closer to that deadline year set by the law.

Such design decisions can lead to “pretty big differences” in the percentages of schools that make adequate progress, according to Andrew C. Porter, the director of the Learning Sciences Institute at Vanderbilt University in Nashville, Tenn. A simulation he and others conducted, based on 2004 test data from Kentucky, found that the proportion of schools there making AYP varied from 59 percent to 89 percent, based on the design decisions in those three areas: subgroup size, the use of a confidence interval, and the timeline trajectory for getting all students to proficiency.

At least 31 states also chose to identify districts for improvement under the federal law only if they miss their targets for two years in a row across all of the grade spans tested: elementary, middle, and high school, or elementary/middle and high school.

In a report released last month on 2005 amendments to state accountability plans, prepared for the Washington-based Council of Chief State School Officers, authors William J. Erpenbach and Ellen Forte concluded that, in the long run, “the accumulation of amendments and ‘flexibility’ may result in educational accountability systems that lack any real connection to the achievement goals they were supposed to realize.”

Jack Jennings, the president of the Center on Education Policy, a Washington think tank, indicated that he sees the extra leeway that Ms. Spellings granted this year as less significant than the use states have made of previously existing flexibility under the NCLB law.

“What is troubling is that what has been granted—especially with confidence intervals and with the size of subgroups—raises questions about whether the implementation of the law has become so loose now that the law may be losing some of its meaning,” Mr. Jennings said.

Last month, the Education Department released a report designed to show the “variety of fair and reliable methods” states are using to comply with the law, and why the department decided to accept such diverse approaches.

“Because each state is unique, no two state accountability plans are identical,” the report said. “While approved changes to state accountability plans are not uniform across the states, our criteria for evaluating and approving such changes are uniform. They reflect the department’s commitment to maximizing accountability while minimizing error in measuring school performance.”

Inconsistent Data

In a comparison of data from the 2003-04 and 2004-05 school years, states that improved student performance on state-required exams did not always see a subsequent improvement in the percent of public schools making adequate yearly progress. States must raise proficiency targets at least every three years, under the NCLB law. So schools must continually increase the percent of students scoring “proficient” or higher in order to maintain a favorable rating.

Note: To determine if there was an increase or decrease in the percent of students scoring at or above proficient on state tests, the percentage-point change between 2004 and 2005 was averaged across  4th and 8th grade reading and mathematics. Some states average additional grades in order to determine AYP status. If a state  did not give tests at grade 4 or 8, the EPE Research Center accepted test results from the next closest grade level. In Ohio, only 4th grade reading and mathematics were averaged.<br>
SOURCE: Editorial Projects in Education Research Center, 2005
Note: To determine if there was an increase or decrease in the percent of students scoring at or above proficient on state tests, the percentage-point change between 2004 and 2005 was averaged across 4th and 8th grade reading and mathematics. Some states average additional grades in order to determine AYP status. If a state did not give tests at grade 4 or 8, the EPE Research Center accepted test results from the next closest grade level. In Ohio, only 4th grade reading and mathematics were averaged.
SOURCE: Editorial Projects in Education Research Center, 2005

Note: To determine if there was an increase or decrease in the percent of students scoring at or above proficient on state tests, the percentage-point change between 2004 and 2005 was averaged across 4th and 8th grade reading and mathematics. Some states average additional grades in order to determine AYP status. If a state did not give tests at grade 4 or 8, the EPE Research Center accepted test results from the next closest grade level. In Ohio, only 4th grade reading and mathematics were averaged.

SOURCE: Editorial Projects in Education Research Center, 2005

Meanwhile, the extra leeway “has reduced the political temperature to a degree,” added Mr. Jennings, a former staff director of the U.S. House of Representatives’ education committee under a Democratic majority.

“But there’s still strong opposition to the law, and we’re going to see that in January and February when state legislatures reconvene,” he added.

Some of the most contentious issues—such as how to measure progress under the law—likely will be taken up during the law’s reauthorization, scheduled for 2007. ("Political Shifts Cloud Outlook for Renewal of Federal Education Law," part of this special report. )

Of the 45 states and the District of Columbia with data available, the percentage of schools that made AYP in 2005 rose in 21 states, fell in 25 compared with 2004, according to an analysis conducted by the Editorial Projects in Education Research Center for Education Week. The percentage of schools in need of improvement declined in 19 states, compared with 2004. (See chart on right.)

While the proportion of students scoring at or above the proficient level on state tests also rose in many states this past year, the mixed national picture on AYP may have as much to do with how each state calculates progress as on overall test-score trends.

Bar ‘Keeps Going Up’

Despite the leeway granted to states, many experts predict that it will be harder for schools to make their performance targets in the future. That’s because starting this school year, nearly every state will conduct testing in reading and math at all the required grade levels.

That change makes it more likely schools will meet the minimum subgroup requirements for different groups of students. In addition, many states in 2004-05 raised for the first time their targets for the percent of students who must score at the proficient level, and those targets will continue to rise.

“As you look at the content of the requests that have been granted, will that be enough to take the pressure off as you look at next year’s AYP results?” said Michael A. Resnick, the associate executive director of the National School Boards Association, based in Alexandria, Va. “For many districts, the bar keeps going up.”

Others complain about a lack of consistency and transparency on the flexibility some states have gotten compared with others.

David Griffith, the director of governmental affairs for the National Association of State Boards of Education, also based in Alexandria, said its members have asked NASBE to start compiling and collecting such information “so that there’s more transparency and they can learn from each other.”

Utah state Rep. Margaret Dayton, the Republican who led her state’s opposition to the federal act’s reach into schools, said the prospect of greater flexibility for states has not been realized in Utah’s case. Federal officials have denied several waivers requested by the state, she said. From her perspective, she said, the awarding of NCLB waivers appears “arbitrary and capricious.”

“There’s so much frustration across the board, whether it’s from traditionally conservative Utah or traditionally liberal Connecticut,” Mrs. Dayton said. “You have plenty of room for frustration on this.”

Looking to 2007

With the law up for reauthorization in 2007, many education groups are gearing up to try to change it. For example, a 61-group coalition—including education, religious, and civil rights organizations—has signed on to a statement calling for Congress and the Bush administration to make 14 specific changes to the act.

Other education groups, including the Council of Chief State School Officers and the National Association of Secondary School Principals, also have put proposals on the table or are planning to do so.

“My sense is that every group in the alphabet soup will have proposals that are cast as improvements,” said Susan Traiman, the director of education and workforce policy for the Washington-based Business Roundtable, which has been a strong supporter of the law, “and some will be improvements, and some will not be in the spirit of the law.”

Yet despite the many proposals to change the law, many educators acknowledge that it has provided leverage for focusing on the needs of poor and minority youngsters.

Brent Walker, the principal of the 300-student Haverhill Cooperative Middle School in North Haverhill, N.H., and a member of the NASSP’s No Child Left Behind Task Force, said: “It’s a way to have conversations with teachers and parents about tough things that needed to happen and jump-start change.”

Vol. 25, Issue 15, Pages S1,S2,S3,S4,S5

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