Agency Looks for Balance Policing ESEA

By Erik W. Robelen — March 13, 2002 9 min read
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“The Maine Way” may not exactly mirror the federal government’s way.

In essence, that’s the message J. Duke Albanese, the state’s education commissioner, had for federal officials about the new education act President Bush signed in January.

The six-page letter Mr. Albanese sent to the Department of Education on Feb. 19 provides a quick tutorial on Maine’s standards-based reform efforts, and details concerns about how new federal requirements for testing and accountability may clash with what he termed the Maine way. He asked for maximum leeway as his agency tries to make the new law work at the grassroots.

Maine isn’t alone. State and district leaders across the country are hoping the federal Education Department won’t be too rigid in interpreting and enforcing the “No Child Left Behind” Act of 2001.

It’s a balance the department will try to strike again and again as it seeks to translate the reauthorization of the Elementary and Secondary Education Act into reality: offering states and districts a proper measure of latitude without compromising core elements of the law.

Agency leaders have stressed their desire to work in “partnership” with states and districts. But at times, the federal partner may need to act more like a parent for the law to be fully carried out.

“It’s called tough love,” said Susan B. Neuman, the department’s assistant secretary for elementary and secondary education. “We really want to, where we can, be flexible. ... However, we are very clear about the importance of accountability for change and school improvement.” She added: “We are here to enforce the law.”

The department will encounter plenty of difficult decisions in coming months, and years, as it works to implement the latest revision of the 37-year- old ESEA, the main federal law on K-12 education.

For starters, the department has begun writing regulations and guidance to help govern compliance and to ensure states and districts are clear about federal expectations. How it interprets and fleshes out the legislative provisions sets the stage for how the law will be carried out.

In addition, the agency will monitor and evaluate state and district efforts to comply with myriad requirements, including complex matters on testing, data collection, and demonstration of student-achievement gains. Moreover, the agency must decide how to handle potholes in the regulatory road like missed deadlines.

Political Delicacy

The implementation issues are complex, and at times will be politically delicate.

Take testing. The law requires that within four years, all states must test students annually in grades 3-8 in reading and mathematics, and use those tests to help drive accountability systems intended to ensure that all students are proficient within 12 years. It spells out some specifics on what those tests should look like.

But the final legislative language already has spurred endless questions and disagreement over what is required.

How the department writes the regulations on standards and testing, and how it judges the acceptability of testing regimes, will have a huge impact on states.

The Education Department formally stepped into the fray late last month when it took an initial crack at those regulations. (“Testing Rules Would Grant States Leeway,” March 6, 2002.) Whether agency officials passed the “balance” test on that first try is open to debate. Many state leaders applauded the flexibility the draft rules appear to back. For instance, the draft permits a combination of state and local assessments, though agency leaders have pledged a high threshold for approving such an approach.

But some education advocates in the business and civil rights communities say it is not feasible to monitor statewide progress using a mishmash of local tests.

One of the law’s main architects, Rep. George Miller, D-Calif., said, “If we have a bunch of patchwork local exams ... that absolutely sabotages the effort to get accountability.”

The draft rules are just the opening act. This week, the department is convening a variety of interested parties—state and district leaders, teachers, parents, and others that it selected—to work on the federal proposal. The ESEA requires this “negotiated rulemaking” for testing and standards requirements.

It’s unclear how much influence the negotiators will have. The law states that if the rules the Education Department proposes after completing negotiations diverge from any agreement reached, the secretary of education must simply provide a written explanation.

On those regulations and in other areas, many state and district officials are urging the department to be flexible.

“Washington should take counsel from Maine in this regard,” Mr. Albanese wrote in his Feb. 19 comments. "[H]old us accountable for results, but do not prescribe how we are to approach teaching, learning, and assessment.”

He added: “Where technical or procedural requirements fail to reflect a school or state’s strong performance on student achievement, the touchstone for regulatory action should be to examine results first and foremost.”

When the leaders of large urban districts met in February with Education Department officials, they made a similar plea.

“It’s very, very critical how the law is interpreted, how it allows the flexibility for us to work within the different areas, and there are many areas,” said Marion Canedo, the superintendent of the 47,000-student Buffalo public schools.

A critical challenge will be handling noncompliance. Critics say the agency has a long history of being a paper tiger. In fact, no state has ever lost federal funds for failing to comply with the ESEA, even though only 17 states have met the standards and assessment requirements from the last version of the law, passed in 1994.

Dianne M. Piche, the executive director of the Citizens’ Commission on Civil Rights, a Washington-based advocacy group, said she was encouraged by the rhetoric on enforcement from department leaders, but was reserving judgment.

“Only time will tell whether this new [Bush] administration will be able to make tough calls and make politically challenging decisions ... at the point when, for example, a state comes in and is seriously out of compliance with the Title I provisions,” she said.

Eugene W. Hickok

Asked about the prospect of withholding federal money, Undersecretary Eugene W. Hickok, who along with Ms. Neuman will oversee the ESEA implementation, replied: “No one wants to have to do it, but I can assure you that should we have to, we are prepared to. That is not meant as a threat. ... Our first goal is a full partnership, but our intent is to comply with the law.”

He added, “Members of Congress, on both sides of the aisle, were pretty straightforward in making sure we do just that.”

Staying in Touch

Congress will be watching.

“After what we saw happen in 1994, where the law passed by Congress was really dramatically weakened, watered down by the [Clinton] administration, it’s absolutely incumbent this time that those of us responsible for writing the law very closely monitor the process,” said Rep. Miller, the ranking Democrat on the House Education and the Workforce Committee. “We hope to have constant communications [with] the department about what they’re thinking of doing ... and whether that’s consistent with what Congress proposed.”

In fact, last week Mr. Miller and Rep. John A. Boehner, R- Ohio, the chairman of the education committee, met with Secretary of Education Rod Paige and other administration officials to discuss implementation.

Department leaders have said they will not allow extra time for compliance with the 1994 requirements on standards and assessment beyond extensions already approved or now being made final. If a state is still out of compliance once its extension expires, the agency by law must cut one-quarter of the state’s Title I administrative funds.

Mr. Hickok said the department means business when it comes to deadlines.

“There’s a sense of urgency here,” he said. “We’re not interested in a lot of conversations about delay.” He added, “Now, that doesn’t mean there won’t be a reasonable standard. ... But we all know what the law is. Let’s get the job done.”

The department may soon face some difficult dilemmas. For example, by next fall, all newly hired teachers in a school program supported by Title I funds must meet a federal definition of “highly qualified.”

Immediately upon the law’s Jan. 8 signing, paraprofessionals newly hired under Title I were required to have at least two years of higher education or to have passed a written exam. Paraprofessionals already on the payroll have four years to comply.

“Our paraprofessionals are very nervous and stressed out, not knowing what to expect,” Wayne Joyner, the director of personnel for the 6,800-student Pender County schools in Burgaw, N.C., wrote in a Feb. 14 letter to the federal department.

“We have a responsibility to fill our classrooms with the best-qualified teachers we can get,” said Jeff Simering, the legislative director of the Council of the Great City Schools, a Washington-based association of urban districts. “But if they’re not out there, what are we going to do?”

Agency officials say they have not decided on a course of action if districts fail to follow the law on teachers and paraprofessionals.

Overall, the Education Department is taking a variety of steps to jumpstart the ESEA’s implementation. For instance, Assistant Secretary Neuman said, the agency has been working hard to issue regulations, guidance, and related materials as quickly as possible. The office of elementary and secondary education is hiring extra staff members to help, she said.

She stressed, however, that the job is a departmentwide responsibility. “We see this as a bill that’s not focused on one specific office,” Ms. Neuman said. “It really is focused on the whole department.”

In a sign of that mobilization, department officials say they are setting up a “war room.”

Mr. Hickok described it as “a nerve center” to provide information on the ESEA’s implementation, such as the compliance status of states. In addition, the war room will be a resource for people outside the department, with a toll-free number—(888) 814-NCLB—for questions.

Department officials have also been reaching out to core constituencies. Since January, they have met with state education chiefs, governors’ education advisers, and urban education leaders to talk about the new law. They have held focus groups to get input.

And speaking at an ESEA symposium last month, Mr. Hickok said the department would cast a wider net to hold an “extended conversation with the American people” about the new law.

“It’s very apparent to me that if we are to succeed not just in implementing the law, but in changing education,” the undersecretary said, “we really do have to remember who the audience is.”

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A version of this article appeared in the March 13, 2002 edition of Education Week as Agency Looks for Balance Policing ESEA


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