Federal

Department Raps States on Testing

By Lynn Olson — July 05, 2006 12 min read
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Includes updates and/or revisions.

The U.S. Department of Education has notified 10 states that it intends to withhold a portion of their state administrative funds under the Title I program for failing to comply fully with the testing provisions of the No Child Left Behind Act by the end of the 2005-06 school year. Those funds would instead be diverted directly to school districts.

Twenty-five additional states, the District of Columbia, and Puerto Rico also could have a portion of their aid withheld if they fail to meet timelines for having their testing systems fully in compliance with the federal law by the end of the coming school year.

Coupled with a recent threat to withhold money from states that fail to meet the law’s requirements for “highly qualified” teachers, the move signals a significant toughening in the enforcement of the federal law, a reauthorization of the Elementary and Secondary Education Act.

“A number of states have yet to demonstrate that their full complement of standards and assessments meets specific NCLB requirements,” Assistant Secretary of Education Henry L. Johnson wrote in a letter to chief state school officers dated June 30. "[W]e cannot afford to delay. The goal of having all students reach grade-level standards by 2013-14 is an urgent one, and having an approved system is an essential step toward the goal.”

Department officials had been warning states since President Bush signed the legislation in January 2002 that there would be no waivers to the testing requirements, which are the basis for holding schools and districts accountable under the law. But the monetary penalties caught many states by surprise, and a number of officials said this week they would contest the decisions.

“We will challenge the findings,” Nebraska Commissioner of Education Doug Christensen said during a July 5 press conference in Lincoln.

Nebraska and Maine are the only two states that received an initial designation of “nonapproved,” the lowest possible category, and must enter into a compliance agreement with the federal government. Mr. Christensen said he felt “blindsided” by the decision and disappointed in his interactions with federal officials, who refused a face-to-face meeting before a decision was made, he said.

Others were equally dismayed.

“Like many states, Illinois has some serious misgivings about the Education Department’s characterization of our assessment system,” said Meta M. Minton, a spokeswoman for the Illinois education department, which could have $540,228 in state administrative funds withheld and passed on, instead, to its districts. “We believe that, overall, Illinois’ system should be viewed as a success.”

By July 1, federal officials had notified states by letter or phone about the initial status of their testing systems under the law. States threatened with an immediate loss of money have 20 busi-ness days from the receipt of their letter to challenge the findings and submit additional data. Other states in the “approval pending” categories have 25days to do so, and to submit plans and timelines for coming into full compliance with the law’s testing provisions in the 2006-07 school year.

Besides losing some administrative funds—ranging from 10 percent to 25 percent, depending on their status—states that are not in full compliance with the testing provisions cannot apply for additional flexibility under the law, such as switching the order in which they offer students school choice and supplemental tutoring services in schools identified for needing improvement.

Some states—such as Michigan and New York—also have been told they cannot count as proficient the scores of certain students in determining whether schools made adequate yearly progress in 2005-06, notably those with disabilities who took tests that were found to be out of compliance with the law.

“Doomsday has arrived, and we all need to deal with it,” Sue Rigney, an assessment specialist in the federal office of elementary and secondary education, told state testing directors last month in San Francisco at the Council of Chief State School Officers’ annual conference on large-scale assessment.

Documentation Lacking

Under a provision that took effect with the 2005-06 school year, the federal law requires states to test students in reading and mathematics annually in grades 3-8 and at least once in high school, beginning with the 2005-06 school year, using tests aligned with their state academic standards. States must include students with disabilities and English-language learners in their testing systems.

They must also develop alternate assessments, including ones pegged to a measure other than a grade-level standard, for students with significant cognitive disabilities who cannot participate in the regular state tests.

Providing sufficient technical documentation that they have met all those requirements on schedule has proved a tall order for many states.

State Status

The U.S. Department of Education intends to withhold a portion of state administrative funds under the Title I program for states that have failed to fully comply with NCLB testing provisions. Following is a list of the different categories states have been placed in based on evaluations by the department.
Click on each status level for detail.

Click here for a complete state map.


  • Full Approval
  • Maryland, Oklahoma, Tennessee, West VirginiaMeaning: Meets all No Child Left Behind Act requirements

    Action: None

    Consequences: None

  • ";} ?>
  • Full Approval with Recommendations
  • Arizona, Delaware, Indiana, North Carolina, South Carolina, UtahMeaning: Meets all requirements, but one element could be improved

    Action: Act on recommendations

    Consequences: None

    ” ;} ?>

  • Approval Expected
  • Alaska, Connecticut, Louisiana, MassachusettsMeaning: Evidence suggests meets all requirements, some work on standards, documentation not completed by July 1

    Action: Satisfy remaining requirements before giving 2006-07 tests; provide plan and detailed timeline for doing so

    Consequences: Conditions placed on FY 2006 Title I, Part A administrative funds

  • ";} ?>
  • Approval Pending, No Withholding, Level 1
  • Alabama, Iowa, Michigan, New Hampshire, New Jersey, New York, North Dakota, Ohio, Rhode Island, Vermont, VirginiaMeaning: One fundamental component missing or do not meet statutory and regulatory requirements

    Action: Provide plan and detailed timeline for meeting requirements by the end of the 2006- 07 school year; file bimonthly reports on progress

    Consequences: Mandatory oversight; conditions placed on FY 2006 Title I, Part A grant award; limits on NCLB flexibility; if at any point the state fails to meet the timelines set forth in its plan, will withhold 10 percent of state’s FY 2006 Title I, Part A administrative funds, which will revert to local school districts in the state

  • ";} ?>
  • Approval Pending, No Withholding, Level 2
  • Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Idaho, Missouri, Nevada, New Mexico, Oregon, Pennsylvania, Puerto Rico, Washington, Wisconsin, WyomingMeaning: At least two fundamental components missing or do not meet statutory and regulatory requirements

    Action: Provide plan and detailed timeline for meeting requirements by the end of the 2006- 07 school year; file bimonthly reports on progress

    Consequences: Mandatory oversight; conditions placed on FY 2006 Title I, Part A grant award; limits on NCLB flexibility; if at any point the state fails to meet the timelines set forth in its plan, will withhold 15 percent of state’s FY 2006 Title I, Part A administrative funds, which will revert to local school districts in the state

  • ";} ?>
  • Approval Pending, Withholding Funds
  • Hawaii, Illinois, Kansas, Kentucky, Minnesota, Montana, South Dakota, TexasMeaning: Three or more fundamental components missing or do not meet statutory and regulatory requirements

    Action: Provide plan and detailed timeline for meeting remaining requirements by the end of the 2006-07 school year; file bimonthly reports on progress

    Consequences: Mandatory oversight; conditions placed on FY 2006 Title I, Part A grant award; limits on NCLB flexibility; withholding 10 percent of the state’s FY 2006 Title I, Part A administrative funds, which will revert to local education agencies in the state; if at any point the state fails to meet the timelines set forth in its plan, an additional 10 percent of the state’s FY 2006 Title I, Part A administrative funds will be withheld

  • ";} ?>
  • Not Approved
  • Maine, NebraskaMeaning: Many components missing or do not meet statutory and regulatory requirements; will not be able to administer a fully approved assessment in the 2006-07 school year

    Action: U.S. Department of Education and the state will need to agree on a detailed plan and timeline for meeting remaining requirements as soon as possible, but within three years

    Consequences: Compliance agreement. Before entering into compliance agreement, federal department of education must hold a hearing to explore why full compliance is not feasible until a future date; findings of noncompliance and substance of compliance agreement published in the Federal Register. Conditions placed on FY 2006 Title I, Part A grant award; limits on NCLB flexibility; withholding 25 percent of the state’s FY 2006 Title I, Part A administrative funds, which will revert to local school districts in the state; if at any point the state fails to meet the timelines set forth in its plan, an additional 10 percent of the state’s FY 2006 Title I, Part A administrative funds will be withheld

  • ";} ?>
  • Note
  • Because of Hurricane Katrina, Mississippi received a one-year extension, until 2006-07, to meet testing requirements.

“There are many states whose technical manuals are not very comprehensive and complete,” said Ellen Forte, an independent consultant based in Washington who has helped review state testing systems for the Department of Education. “States are so busy doing the work, they don’t really have time to document it.”

To determine whether states’ testing systems met the law’s requirements, the federal department used a “peer review” process. Teams of three outside experts in standards and assessments spent up to two-and-a-half days reviewing boxes of documents submitted by each state in response to some 150 questions about the characteristics of its testing system. Federal officials used those reports to decide on the status of each state’s assessments, from nonapproved to full approval.

Most state officials described the review process as helpful. But some charged that the decisions by federal officials based on those reviews were inconsistent across states and either failed to take account of some of the evidence submitted or to accurately reflect what the peer reviewers had found.

“We’re fairly optimistic that we can get this worked out,” said Deborah Graves Ratcliffe, the spokeswoman for the Texas Education Agency, which could lose nearly $1.19 billion in state administrative funds from the federal government.

“It was a very long and arduous process,” she added. “We sent them boxloads of material. And I’m sure every state sent them boxloads of materials. So there are times when we’re not sure they completely read or understood what we sent them.”

Others agreed.

“We felt that the peer-review process was a very healthy one,” said Maine Commissioner of Education Susan A. Gendron. “My concern is there seems to be variations in interpretation across the states. When I look at our fellow states that have many more issues than we do, who have ‘approval pending,’ I think we should definitely be in that category.”

Maine’s letter cited concerns about its alternate assessments and about its use of the SAT as its high school test, without providing additional proof that the college-admissions exam is aligned to the state’s content standards. Ms. Gendron said the state planned to submit additional evidence within the next 20 days.

“I’m hoping we’re going to change that status to, hopefully, ‘approval expected,’ if not ‘approval pending’,” she said.

As in Maine, the biggest challenge for many states was to set performance standards on their alternate assessments and to prove that those tests are aligned with state content standards and meet technical criteria for quality.

Review Process Criticized

States also struggled to show that they were providing appropriate accommodations for special education students and those still learning English; that their tests and their content standards were sufficiently aligned; and that the results of different forms of state of state tests were compa-rable, such as scores from paper-and-pencil tests and computer-administered exams, or Spanish translations of state assessments.

Nebraska is the only state that is relying on local tests to measure adequate yearly progress under the federal law, an option permitted under the statute. Mr. Christensen suggested that a different technical lens is needed to measure the quality of local, as opposed to state, assessments.

“I would challenge USDE that no state has done as much to document technical quality as Ne-braska,” he said.

A number of states have complained that it was impossible to provide all the documentation on schedule, when many states gave their full complement of NCLB tests for the first time this past spring—and when the department had failed to release clear guidance about tests for students with disabilities until late last year.

Some also criticized what they called the “evolving nature” of the review process itself.

Although only 19 states had met all the testing provisions under the previous reauthorization of the federal law by 2002, few had felt any consequences. So the department’s firm stance this time around seemed to catch many states off guard.

Some questioned whether the department even has the authority to withhold funds and divert them to local districts.

“There is no explicit authority for USDE to withhold funds as a condition of forcing compliance,” charged Commissioner Christensen of Nebraska.

Scott R. Palmer, a lawyer with the Washington-based firm of Holland & Knight who works with a number of states on NCLB issues, said, “It’s an open question, and I think that there’s a lot of things that we need to look at here to make sure that the system makes sense.”

The approval status of state testing programs could change in the next few months depending on additional evidence submitted to the federal government.

In his letter to states, Assistant Secretary Johnson said the department would provide “extensive assistance” to states, including making site visits and facilitating the sharing of successful as-sessment strategies. He said that further plans and information about technical assistance would be forthcoming.

A version of this article appeared in the July 12, 2006 edition of Education Week

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