ESEA Delays Prompt States to Threaten Policy Revolts

By Alyson Klein & Michele McNeil — July 12, 2011 8 min read
U.S. Rep. George Miller, D-Calif., left, the leading Democrat on the House education committee, listens as U.S. Secretary of Education Arne Duncan makes a point during a discussion of ESEA reauthorization last month at the Center for American Progress, a Washington-based think-tank.
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States and districts would get unprecedented leeway to move federal money around, under the latest in a series of bills to reauthorize the Elementary and Secondary Education Act.

But the measure has already been decried by top Democrats and civil rights advocates as an attempt to dismantle the U.S. Department of Education and an attack on students’ civil rights.

Meanwhile, with big questions still surrounding the fate of the nation’s chief education accountability law, states are beginning to put federal officials on notice that they plan to disregard key pieces of the No Child Left Behind Act—the current version of the ESEA—if Congress fails to make changes.

And there has been pushback on Capitol Hill to U.S. Secretary of Education Arne Duncan’s plan to issue waivers of parts of the NCLB law if Congress does not complete ESEA reauthorization in time for the start of the 2011-12 school year—the deadline the Obama administration advocates.

The funding-flexibility legislation, introduced last week by Rep. John Kline, R-Minn, the chairman of the House Education and the Workforce Committee, envisions a very different role for Washington when it comes to telling states and districts how to spend their federal money.

Instead of directing states and districts to spend a certain amount on a particular population, such as English-language learners, states and districts could move the dollars out of almost any program and spend them on a wide range of activities authorized under the ESEA.

Districts could, for example, move all the money out of Title I grants for disadvantaged students and spend it on professional development under the Teacher Quality State Grants program.

However, states and districts would still be required to fulfill reporting requirements for all programs, even if they moved all the money out of them.

Rep. Kline said superintendents are frustrated that they’re unable to spend money where it’s needed most.

“It has been perplexing to [superintendents] and schools throughout the country that they cannot move money where they need it,” he said in a July 7 appearance on the radio program “Morning in America,” hosted by former Secretary of Education William J. Bennett.

For instance, Rep. Kline said, a superintendent may want to upgrade computers to benefit all students, but not have the funding. The district should be able to shift federal money aimed at English-language learners to pay for the equipment, he said.

Right now, “there is a constituency ... that says, ‘Oh no no, you can’t spend that money in another category,’ ” he said. “I think it inhibits the progress of all the kids.”

Rep. Kline had hoped to consider the funding bill earlier this year, but pulled it back, in part to garner support from Democrats.

But Rep. George Miller, D-Calif., the top Democrat on the education committee, said the measure is “an offensive, direct attack on civil rights” that is sure to weaken efforts to ensure that disadvantaged and minority students get access to educational opportunities.

“This back-door attempt at fulfilling campaign promises to dismantle the federal role in education will turn back the clock on civil rights and especially harm low-income and minority students,” Rep. Miller said.

And he made it clear that the proposal is going to make it tougher to achieve bipartisanship on the ESEA.

“This bill makes it much more difficult to continue in a bipartisan manner to rewrite the Elementary and Secondary Education Act,” he said.

Secretary Duncan shares Rep. Miller’s concerns.

“This bill doesn’t fix the real problems with NCLB and runs the risk of shortchanging students with the greatest needs,” said Justin Hamilton, a spokesman for the Education Department.

Administrator Perspective

Even so, there were signs that superintendents might welcome the move by Chairman Kline.

The Republican legislation “trusts that local educators are the best equipped” to make decisions about what will affect student achievement, said Noelle Ellerson, the assistant director of policy analysis and advocacy for the American Association of School Administrators, which represents district-level leaders.

She added that since the measure would call for states and districts to continue to meet reporting requirements, it shouldn’t be viewed as backsliding on accountability for use of the funds.

But civil rights advocates are already warning of the plan’s potential adverse impact on disadvantaged and minority children.

“This kind of flexibility isn’t what our schools need to raise achievement and close gaps. ... We don’t see how anything good comes out of this,” said Kate Tromble, the director of legislative affairs for the Education Trust, an advocacy organization in Washington that works in behalf of low-income and minority students.

One of the pots of federal aid that districts could move money to is Title V, which is called Innovative Programs—an extremely flexible funding stream. Districts can use the money for a wide range of purposes: charter schools, technology, class-size reduction, prekindergarten, and adult education, to name several.

Under the measure, districts would have to let states know ahead of time how they planned to use the funds, and states would have to keep the federal Education Department in the loop on their spending plans. But there wouldn’t be any application or approval process.

NCLB Ignored?

The latest legislative moves come as some states are letting the federal government know that they plan to ignore parts of the 9-year-old No Child Left Behind Act if the ESEA is not renewed soon.

So far, Idaho, Montana, and South Dakota have notified the Education Department that they will stop the clock as the 2014 deadline approaches for bringing all students to proficiency in math and language arts. In separate letters to Secretary Duncan, they’ve said they will freeze their proficiency targets at 2009-10 levels in hopes of limiting the number of schools that fail to make adequate yearly progress and face penalties under the federal law.

Kentucky is taking a different tack: It has asked permission to use its own accountability system in place of the NCLB structure.

But the Education Department is warning states that flouting the law will not be tolerated, even if Congress fails to rewrite the ESEA in the near future.

“If Congress needs more time, our Plan B would be to offer relief in exchange for reform to states who desperately want flexibility from NCLB’s broken provisions,” Mr. Hamilton, the department spokesman, said July 5. “This will give all states the option of either complying with existing law or participating in Plan B. One way or another, we need to enforce the law or change it.”

In fact, the department sent Montana Superintendent of Public Instruction Denise Juneau a letter, dated July 1, telling her that her state was out of compliance for not raising its proficiency targets for the 2010-11 school year.

In an interview, Ms. Juneau said that since federal officials have been slow in responding, she decided to freeze proficiency targets anyway so the state could remain on track for other deadlines, such as publicizing test results. As of now, she has no intention of reversing course, even if the state is out of compliance.

“We’re just moving forward,” she said. “Our schools do very well, and they can provide proof through data.”

The U.S. Department of Eduction has given Montana an Aug. 15 deadline to report how the state plans to comply with the NCLB law.

Feuding Over Flexibility

Although President Barack Obama has said he wants an overhaul of the ESEA, Congress is moving slowly. The House of Representatives is considering several tightly focused bills, the latest of which is the funding-flexibility legislation. The Senate has produced nothing and is still informally discussing what a new law would look like.

Mr. Duncan has announced that he will offer NCLB waivers to states this fall if Congress does not act—but only if they agree to embrace his reform priorities. He has yet to offer details about what provisions of the law might be waived and what would be asked of states in exchange.

The uncertainty isn’t sitting well with some state education chiefs or with some influential members of Congress.

“Idaho, like many other states, does not have the luxury of spending time and limited resources on

meeting the rigid requirements of an outdated accountability system,” state schools superintendent Tom Luna wrote to Mr. Duncan in a June 21 letter. “If Congress and the administration will not act, states like Idaho will.”

In Montana, Ms. Juneau said she is freezing performance targets in part because her office simply doesn’t have the staff to deal with an increasing number of schools that may face penalties under the No Child Left Behind law.

“Our office resources are better used to continue our work with schools already identified for assistance than to increase the number of schools that cannot be offered the required additional resources,” she wrote in April to the Education Department informing federal officials of her decision to freeze proficiency targets.

For schools in Montana to make AYP, 92 percent of students were supposed to be proficient in language arts in 2010-11, up from 83 percent the year before; the target for math is 84 percent, up from 68 percent. Test scores have not yet been released.Ms. Juneau indicated that there was one action that could get her to revert to those higher targets: if federal officials threaten to withhold money from the state. “I am not willing to put our schools’ federal funding in jeopardy,” she said.

Indeed, the department’s chief method for enforcing the law is withholding money, a potentially powerful weapon at a time when recession-weary states are still recovering. At stake for all states is $14.5 billion in the coming school year that’s governed by the NCLB law.

South Dakota is using Mr. Duncan’s own argument to explain why it’s going to freeze its proficiency targets

In a June 29 letter, state Secretary of Education Melody Schopp wrote: “Without making these changes, we believe our accountability system, as it currently stands, would inappropriately label schools as failing. The situation would eventually trigger a number of NCLB-related sanctions that our department simply does not have the capacity to address.”

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A version of this article appeared in the July 13, 2011 edition of Education Week as ESEA Delays Prompt States to Threaten Policy Revolts


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