Published Online: November 15, 2010
Published in Print: November 17, 2010, as New Tack on NCLB: Regulatory Relief

Groups Eye Regulatory Relief Under NCLB

School districts and educators chafing under the mandates of the No Child Left Behind Act are hoping to prod the U.S. Department of Education into giving them a reprieve from the provisions they see as most onerous, as the prospects for an overhaul of the law by Congress anytime soon remain cloudy.

The Obama administration and congressional leaders from both parties have long said the law, the current version of the Elementary and Secondary Education Act, is inflexible and intrusive. School advocates argue that cash-strapped districts shouldn’t expend resources on requirements that will likely be scrapped in the rewrite of the ESEA, which has been pending since 2007.

Now, organizations such as the American Association of School Administrators and the National School Boards Association are gearing up for a renewed push for regulatory relief, including items that have long been on their wish lists.

“We really think this is a way to bridge the gap between where we are now and where we’ll end up eventually,” said Noelle Ellerson, the assistant director for policy analysis and advocacy at the AASA, in Arlington, Va.

But others say that a package of regulatory fixes—even in areas that the administration and Congress agree need to be addressed—could slow the momentum for a comprehensive, bipartisan reauthorization of the ESEA.

The push for wiggle room is nothing new, said Jack Jennings, the president of the Center on Education Policy, a research organization in Washington.

“Mainline education groups have wanted regulatory relief for several years now,” and were hoping that U.S. Secretary of Education Arne Duncan would provide it when he took office last year, said Mr. Jennings, a former longtime aide to Democrats on the House education committee.

Spotlight on No Child Left Behind (NCLB)

But, he added, “I doubt Duncan would do it, because it undercuts the urgency of revising ESEA.”

Indeed, the Education Department says the push for regulatory changes underscores the need for a comprehensive renewal of the law.

“We are taking their recommendations into consideration,” Sandra Abrevaya, a spokeswoman for Secretary Duncan, said in an e-mail. “These conversations reaffirm the need for reauthorization.”

If Mr. Duncan did decide to offer some form of regulatory change, it wouldn’t be the first time the department used that process to tweak the No Child Left Behind law.

His predecessor, Secretary Margaret Spellings—one of the architects of the law while she was a top White House aide under President George W. Bush—ushered in a series of fixes, including permitting states to meet achievement targets through so-called growth models, which measure individual student progress over time, as opposed to status models, which compare different cohorts of students with one another.

Pressure Builds

The clamor for regulatory relief is likely to continue as the 2013-14 deadline approaches for bringing all students to proficiency in reading and mathematics, said Patrick McGuinn, an associate professor of political science at Drew University, in Madison, N.J., who has written extensively about the politics of the NCLB law.

“More and more schools are going to get hit” with sanctions for not meeting achievement targets under the law as the deadline approaches,” he said. “It’s a pickle for states. ... The escalating sanctions of NCLB’s accountability system and the increasing state fiscal crisis make it harder for them to assist schools.”

Mr. McGuinn said the political timing for regulatory relief might be right, since many members of the incoming Republican majority in the U.S. House of Representatives ran on a platform of slimmed-down government.

Reginald M. Felton, the director of federal relations for the Alexandria, Va.-based NSBA, acknowledged that the new dynamics might work in favor of the push.

“Certainly, the new House is very much concerned about the federal role,” Mr. Felton said. “This could be a lessening of the federal role.” But he emphasized that NSBA members have long considered the law’s current accountability system to be “unfair and inaccurate.”

Still, some civil rights organizations want to ensure that regulatory relief—if it happens—doesn’t weaken the accountability aims at the heart of the law.

The Education Trust, a research and advocacy organization in Washington that seeks to improve education for poor and minority children, sees room for the department to offer new flexibility in certain areas. But the group would oppose any regulatory revisions it views as a wholesale watering-down of the law’s core principles.

“Would we support getting rid of an accountability system and calling it regulatory relief? No,” said Kate Tromble, the director of legislative affairs for the Education Trust.

And there are other political considerations beyond education that could make regulatory relief difficult, said Andrew J. Rotherham, a co-founder of Bellwether Education Partners, a Washington nonprofit group focused on improving education for disadvantaged students.

While educators may be concentrating just on Mr. Duncan and his department, the Obama administration has to consider how it wants to deal with the regulatory process as a whole in the new political environment created by the big GOP gains in the midterm elections, he said.

“They have to be careful and be respectful of congressional prerogative,” Mr. Rotherham said. He added that “they don’t want to walk into a political buzz saw where Republicans get to say they’re caving on accountability.”

Wish Lists

The education groups’ requests include some relatively small changes—and some much bigger ones.

For instance, in a letter sent to Secretary Duncan last month, the AASA requested that districts be allowed to use their own teachers to provide tutoring services under the law. That’s something the Chicago district got a federal waiver to do in 2005, when Mr. Duncan was the schools chief there.

The organization, which represents superintendents and other district-level officials, also wants schools to be able to designate a primary subgroup category for each student, so that no school will be penalized twice for a student who fails to meet targets and falls into two subgroups—for instance, an English-language learner who is also a student in special education.

But the AASA and the NSBA also want the Education Department to temporarily suspend any additional consequences for schools that don’t meet the NCLB law’s achievement targets until the new version is in place. That would be a more significant departure from current law.

The AASA also requested that school districts be able to test students every two years, instead of annually in grades 3-8 as currently required.

The 3.2 million-member National Education Association also supports the idea of regulatory relief.

“We think the department shouldn’t wait for Congress” to reauthorize the law before fixing some of the core issues, said Kim Anderson, the union’s director of government relations, in an interview shortly after the midterm elections.

For instance, the NEA would like to see the department address areas including the “all-or-nothing consequences” of not meeting achievement targets, she said, and examine the law’s mandates on “highly qualified” teachers.

Mr. Rotherham said that while some of the organizations’ requests are reasonable, proposals such as a move away from annual testing “are an overreach,” and would hinder schools’ ability to track student progress.

And he said it might be hard for the administration to trust states not to abuse new flexibilities. “States have gamed this law all the way along,” he said.

Ms. Ellerson said that the AASA doesn’t necessarily expect the dpartment to run with all its ideas. Allowing for any of the changes “would be a step in the right direction,” she said.

Renewal a Priority

Advocates say they hope some of the changes they are seeking will be made in a reauthorization of the ESEA, but they are already worried that chances for passage next year are slim.

Gerald Tirozzi, the executive director of the National Association of Secondary School Principals, in Reston, Va., said he brought up the issue of regulatory relief, without going into specific requests, at a meeting with Education Department officials earlier this fall.

But he got the sense that the administration is expecting a renewal of the law next year.

In his view, that’s “highly questionable,” since the new GOP majority in the House “is going to want to look at it all over again.” And in 2012, he fears, the presidential campaign will gum up the works even more.

Mr. Tirozzi, who served in the department as assistant secretary for elementary and secondary education in the Clinton administration, added, “I think you almost need a parallel path” that includes some regulatory changes.

“If there is no regulatory relief,” he said, “this thing does not sunset, and we have to live with it.”

Some of the groups have been trying to sell the idea of regulatory revision on Capitol Hill. But Rep. George Miller, D-Calif, the outgoing chairman of the House Education and Labor Committee, believes “we need a full ESEA reauthorization as quickly as possible,” said Melissa Salmanowitz, a spokeswoman, in response to a question on prospects for regulatory relief.

ESEA ‘Lite’?

If the department doesn’t act on regulatory relief, some observers expect that Congress could do so, passing a limited ESEA renewal bill in 2011.

Frederick M. Hess, the director of education policy studies for the American Enterprise Institute, a Washington think tank, thinks a targeted “NCLB patch” is much more likely than a full-blown reauthorization bill.

Such a move would probably “relax any actual consequences” of the NCLB law, without making wholesale changes to the overall structure of the measure, Mr. Hess said at an event last week hosted by the AEI examining the impact of the midterm elections on education policy.

But Lindsay Hunsicker, the top education aide for Sen. Michael B. Enzi of Wyoming, the ranking Republican on the Senate Health, Education, Labor, and Pensions Committee—and one of a group of core lawmakers the administration is courting in its push to revise the law—said at the event that she doesn’t think her boss would be interested in “piecemeal” legislation, in part because it means that politically tricky issues could get pushed aside.

Vol. 30, Issue 12, Pages 1,24-25

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