Bill Would Make ‘No Child’ Flexibility Retroactive

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Two Democratic architects of the No Child Left Behind Act introduced a bill last week that they say could bring relief to potentially thousands of schools that might be graded unfairly under the federal law.

The proposal, which seeks to override a decision by the Department of Education, would allow states to retroactively apply recent regulatory changes that are expected to make it easier for some schools to make "adequate yearly progress" under the law.

"This common-sense bill would allow schools to apply the same set of rules developed by the Department of Education to both this year’s test results and to last year’s test results," Sen. Edward M. Kennedy of Massachusetts and Rep. George Miller of California said in a joint statement on June 17. "It is a fair, consistent objective that will increase support for the goals of No Child Left Behind and ultimately strengthen this historic education reform."

Rep. Miller and Sen. Kennedy are the senior Democrats, respectively, on the House and Senate education committees.

The Education Department has said its revised rules will apply only to future determinations of whether schools had made adequate progress.

Rep. Miller Issues Clarification

Rep. George Miller, D-Calif., issued a press release June 18, 2004, after press time for this story, clarifying that a bill he has co-sponsored would not deny public school choice or supplemental educational services to children who are already making use of those options under the No Child Left Behind Act.

A day earlier, Mr. Miller and Sen. Edward M. Kennedy, D-Mass., unveiled legislation that would make regulatory changes recently announced by the Department of Education apply retroactively. Those changes were expected to make it easier for some schools to make "adequate yearly progress" under the federal law.

Facing criticism from the Bush administration and leading Republicans in Congress, Mr. Miller's office sought to make clear how the bill would affect children in schools that, after re-evaluation of last year's progress, were technically no longer subject to the law's school choice or supplemental-services requirements.

If a student had already transferred, the bill would require a district to continue to permit that child to remain at that school until completion of the highest grade. Also, a student who was already receiving tutoring under the law when the school's status was changed would continue to have that tutoring available through the end of the academic year.

Secretary of Education Rod Paige called the Democrats’ bill "misguided." He argued in a statement that it would potentially deny many students "their No Child Left Behind-provided tutors or [force] them back to a school from whose shackles they had already broken away thanks to" the law.

Since December, the department has announced three rounds of changes to federal rules that will affect how states gauge school progress. It offered states more flexibility in testing students with disabilities and limited English skills, as well as in the methods they can use to calculate test-participation rates. Besides showing academic gains, schools must test at least 95 percent of students from different subgroups of students, such as by race and socioeconomic status, to pass federal muster. ("States Given More Leeway on Test Rule," April 7, 2004.)

Under the law, if a Title I school falls short of state performance targets for two straight years, its students are eligible to transfer to higher-performing public schools. After a third year, they may select a provider of supplemental education services, including private tutoring firms. If a school continues to miss the targets in further years, the consequences become more severe and may include a state takeover.

Taking Away Choices?

Thomas R. Kiley, a spokesman for Rep. Miller, said late last week that he was not aware of any Republican backing yet for the bill.

"We’re looking for co-sponsors now," Mr. Kiley said. "We’d certainly like to have Republican co-sponsors."

He added: "Either the department relents in the face of this, … or else Congress will have to do it for them."

GOP support is crucial, given that Republicans control both chambers of Congress.

The two Democrats already have a formidable opponent in Rep. John A. Boehner, R-Ohio, the chairman of the House Education and the Workforce Committee. Mr. Boehner criticized the Democrats’ plan in a statement last week, saying it would deprive disadvantaged students of new educational options and deprive some schools of extra help they qualify for under federal law.

Several education groups in Washington, including the two national teachers’ unions, the Council of Chief State School Officers, and the Education Trust, an advocacy group that pushed hard for the law’s tough accountability measures, have signaled their support for the bill.

F. Patricia Sullivan, a deputy executive director of the state chiefs’ group, called it a matter of fairness to let states apply the revised rules retroactively. She said the CCSSO recently worked with some states to get a rough idea about whether applying the revisions to last year’s data would increase the number of schools deemed to have made adequate progress.

"It helped some states a lot; it helped some states almost not at all," she said.

In their statement, Sen. Kennedy and Rep. Miller said, "In effect, the department is admitting that it is going to continue to judge schools by a standard that it no longer believes is fair."

Sen. Judd Gregg, R-N.H., the chairman of the Senate Health, Education, Labor, and Pensions Committee, called the bill "an interesting proposition," but said it raises many questions.

"[W]hat impact will it have on children who are already benefiting from choice provisions in the law?" he said in a statement. "Will this force children back into failing schools or take away tutors they have been working with for the past year?"

Vol. 23, Issue 41, Page 29

Published in Print: June 23, 2004, as Bill Would Make ‘No Child’ Flexibility Retroactive
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