Hopes that Congress will complete an overhaul of federal education legislation by summer’s end appear to be waning.
Major differences between House and Senate bills to reauthorize the Elementary and Secondary Education Act will have to be ironed out in a conference committee between the two chambers. And observers predict that some of the differences—on issues including overall education spending, funding for special education, and how to define school progress—will not yield to easy solutions.
“October is a more likely time to get ESEA done, if not later than that,” said Vic Klatt, a lobbyist for the Washington-based Van Scoyoc Associates, who left his post as the chief education aide to Republicans on the House Education and the Workforce Committee a year ago.
In a speech at the White House last week, President Bush said, "[If] the rules are to be changed, and I hope they are in a constructive way, Congress must act quickly, so people on the local level can plan.” He argued there was no reason to delay. “I’m confident that if the will is there, we can resolve any differences and get the bill to my desk,” the president said.
But as Congress’ recess-laden summer slips by with much work still ahead, and with other priorities muscling education onto a back burner, Mr. Bush’s goal of finishing work before the August recess is generally considered overly ambitious.
The House and the Senate have yet to name the team of negotiators who will participate in the conference committee. And even informal negotiations have been put on hold until congressional aides complete a side-by-side analysis of the mammoth House and Senate versions of the ESEA, each of which runs more than 1,000 pages. Aides predict that document will not be completed until the middle of this month at the earliest. Although both Democratic and Republican aides said they were anxious to complete work, none would commit to a specific timetable.
One significant distinction between the two bills lies at the heart of President Bush’s pledge to raise achievement for all students, including poor and minority youngsters. In technical jargon, it’s known as “adequate yearly progress,” but it’s essentially the way that lawmakers will determine whether states, districts, and schools are making enough academic gains to avoid the need for outside help or corrective action.
The 1994 reauthorization of the ESEA allowed each state to write its own definition of progress, with a great deal of flexibility in how states identified low-performing schools. The result was 50 states with 50 different definitions for how to judge if schools are moving student achievement far enough, fast enough.
Both the House and Senate bills would tighten up that definition. Both versions, for example, would set a deadline by which all students must perform at the “proficient” level on state tests—10 years in the Senate bill, and 12 years in the House bill. Both also would require yearly gains in the performance of “disaggregated” subgroups within a school or district, such as poor and minority students, not just in the student population as a whole.
But that’s where the consensus ends. The House bill would require states to set specific numeric objectives every year for the performance of each subgroup, so that all students would score at the proficient level in 12 years. It’s generally the version favored by advocates for poor and minority students because of its clear focus on accountability.
“What we like in the House bill is that it’s straightforward, it requires getting to proficiency in increments, and it requires that this be done for the major demographic groups,” said William L. Taylor, the acting chairman of the Citizens’ Commission on Civil Rights, a Washington-based advocacy group.
But others worry that the annual numeric objectives are so rigid that they could lead to virtually all schools being identified as needing improvement over time, even if only one student subgroup failed to meet its target.
At the urging of the White House and state governors, the Senate bill tried to address that concern. Its definition of adequate yearly progress would permit states to combine the performance of all pupil subgroups in a school, with greater weight given to groups of pupils with the lowest performance and those who had made the most gains. Schools and districts would also have to ensure that the percentage of students in each subgroup who reached the proficient level in reading and mathematics increased by at least 1 percentage point each year.
But the result, critics say, is a Senate formula so complex that no one can understand it, and that could mask a lack of progress by groups of students.
‘A Lot of Back and Forth’
Indeed, some contend that, despite the rhetoric, the Bush administration has already backed away from a steadfast commitment to greater accountability.
“Politically, I’m becoming concerned that the White House has concluded that they already have their win on education, so why enact any policy prescription that’s going to make life difficult in 2004?” said Andrew Rotherham, the director of education policy for the Washington-based Progressive Policy Institute, the think tank for the Democratic Leadership Council, and a former White House education aide in the Clinton administration.
“At the end of the day,” he said, “there’s more folks with an interest in seeing something watered down, for a variety of different reasons, than there are folks who want to see something pretty rigorous.”
Over the past few weeks, White House officials have been meeting with various interest groups to try to arrive at a workable solution. Many of those groups also have been meeting independently. But, so far, no new language has emerged.
“I think there’s still a lot of back and forth,” said Sandy Kress, Mr. Bush’s chief education adviser. “I don’t know that anyone has got a firm fix on it. The two houses have very different provisions. So I don’t know that anyone has derived a universally satisfactory solution.”
But Mr. Kress strongly disputed the notion that the White House is backing off from its commitment to greater accountability for student performance, particularly for specific populations of students, such as African-Americans and Hispanics.
“The question is how much progress is required in order to be adequate, in order to avoid falling into these severe consequences,” he said.
Some who are watching the process have concluded that members of Congress need to start from scratch, if they hope to devise a workable solution on how to gauge schools’ progress.
“Everybody that I’ve talked to about this doesn’t see a conscientious way of really melding these approaches. And, in any case, each of the approaches is flawed,” said Chester E. Finn Jr., the president of the Washington-based Thomas B. Fordham Foundation, which had pulled together a group with an eye toward advising Congress.
“They need a bill to sign, and they’ll get one,” said Mr. Finn, who was an assistant education secretary under Reagan. “But I begin to worry that it’s going to prove un-implementable.”
That concern was echoed by Gordon M. Ambach, who just retired as the executive director of the Council of Chief State School Officers. “Taken together,” he told attendees at the council’s annual meeting on large-scale assessment in Houston last month, the bills’ requirements “could well be resulting in a set of unworkable and dysfunctional assessment and accountability provisions.”
One of the biggest concerns is whether it’s realistic to expect 100 percent of students to score at the “proficient” level by a certain date. A report released by the nonpartisan Congressional Research Service on June 26 notes that in states with such data, only a small percentage of students now perform at the proficient level or higher. Since the law, both currently and as proposed, permits each state to set its own definition of “proficient,” one concern is that unrealistic targets will simply encourage states to lower their definition of “proficient” so that more students can meet it.
Others doubt that schools can make steady gains in test scores each and every year for each subgroup of students.
Tom Kane, a professor of policy studies and economics at the University of California, Los Angeles, recently examined how North Carolina elementary schools would have fared under the House and Senate versions of “adequate yearly progress” between 1994 and 1999. He found that 100 percent of the state’s elementary schools would have failed to meet the House targets for one or more of those years, and 98 percent would have failed to meet the Senate targets. A large share of elementary schools would have missed their targets for two or three years running, even under the Senate’s less exacting formula.
‘“The problem is, the basic concept is wrong. It’s dangerous,” asserted Daniel M. Koretz, a senior social scientist at the Santa Monica, Calif.-based RAND Corp. “The rational thing to expect, even in a well- functioning school system, is that scores will fluctuate,” particularly in small schools or those with unstable student populations.
He cautioned that if Congress persists in setting unrealistic expectations for schools, “at the very least, it will mean tremendous incentives to teach to the test in negative ways, which will mean illusory gains. At the worst, it will give some people an incentive to cheat.”
The report by the Congressional Research Service spells out alternatives for the conference committee, including keeping the current definition of adequate yearly progress, but strongly enforcing new provisions requiring corrective action in schools identified as low-performing. Most states have yet to meet the testing and accountability requirements under current law. The research service also suggests basing decisions on multiple years.
Another option, suggested by some in the education community, is to permit states to set priorities for which schools will actually be targeted for assistance or corrective action.
The problem is that “we don’t know nearly as much as we need to in order to intelligently define adequate yearly progress—in order to know what is a realistic gain,” said Michael Cohen, a senior fellow at the Aspen Institute in Washington and a former White House and Department of Education official under President Clinton.
“I think they’ll finish ESEA in September, and I think the last thing they’ll do is nail down adequate yearly progress,” said Bruce Hunter, director of government relations for the American Association of School Administrators.
Far Apart on Other Issues
Come Aug. 4, lawmakers will skip town until early September. Even picking conferees has been difficult because of the recent switch to Democratic control of the Senate, following the decision by Sen. James M. Jeffords of Vermont to quit the GOP.
With the change in power, most committee action halted, as the Senate negotiated a new committee-organizing agreement, completed just before a July 4 recess. While no announcement of conferees had been made by last week, likely many of the same people most involved in developing the ESEA legislation will also participate in the conference committee.
On the Senate side, where Democrats are expected to have a one- vote majority, there could be as many as 25 conferees. The list of House conferees is likely to be much shorter, though that won’t affect the balance of power in the committee, as each chamber has equal influence regardless of the number of participants. On the House side, Republicans are expected to have one more participant than Democrats, to reflect the Republican majority in that chamber.
When the conference committee convenes, senators and representatives will have many differences to wade through beyond those related to accountability and testing.
For one, the Senate bill has about twice as many discrete education programs as the House version. A recent 18-page summary by the Congressional Research Service of key differences noted the Senate would authorize 89 ESEA programs and the House 47 programs. The ESEA currently authorizes 57 programs that were funded this year, and 24 unfunded programs, according to the CRS.
The funding levels are also dramatically different. The House would authorize $22.9 billion and the Senate $31.7 billion, the CRS report said. Current appropriations for ESEA programs total $18.4 billion.
One of the thorniest funding issues is whether to “fully fund” the maximum allowable federal share of the Individuals with Disabilities Education Act within six years, as the Senate wants to do. The Senate calls for increasing special education spending by $2.5 billion next year, and $181 billion over the next 10 years, until the federal government is providing states with 40 percent of the average per-pupil costs under the IDEA. That 40 percent share is considered “full funding.”
The extra IDEA funding would be on top of the Senate’s multi-billion-dollar increase in ESEA-related programs.
In a speech last week at the annual meeting of the National Education Association, Secretary of Education Rod Paige made an appeal to postpone the funding debate until the IDEA is reauthorized in 2002. “There are serious problems with how we deliver special education services to our students— problems that will not be remedied by amendments that simply throw more money at special ed,” Mr. Paige said.
But his request found no purchase with that particular audience. NEA officials said they would continue to strongly back the amendment, which is not in the House version. A spokesman for the House education committee said Rep. John Boehner, R-Ohio, the chairman of the committee, agrees with the Bush administration that the issue should not be addressed until next year.
Substantive differences between the House and the Senate appear in many other areas as well, from proposals to provide new flexibility to districts and states, to how the two chambers would reshape programs for bilingual education, technology, and teacher quality.
“The president very much wants legislation by the summer recess,” Mr. Kress said. “It can be done.”
“Will it get done?” he added. “I don’t know. We’re a little bit concerned that it may lapse.”
Staff Writer Lisa Fine contributed to this report.
A version of this article appeared in the July 11, 2001 edition of Education Week as ESEA Passage Unlikely Before Fall