Final Rules Give States Direction, Little Flexibility

By Lynn Olson — December 04, 2002 10 min read
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The Department of Education released final regulations last week that, almost 11 months after the “No Child Left Behind” Act of 2001 became law, are meant to bring clarity to some of the law’s centerpiece provisions, including accountability, teacher quality, and public school choice.

In releasing the 378-page document at a press briefing here, Undersecretary of Education Eugene W. Hickok described the rules as a “significant milestone in the implementation of No Child Left Behind.” States and districts have been anxiously awaiting more direction on how to carry out the sweeping revisions in education policy.

The final rules contain few, if any, surprises. Nor do they offer states much of the added flexibility they’ve sought in carrying out the law’s accountability provisions.

In particular, states had been asking for wiggle room in how they define “adequate yearly progress,” or AYP, the measure used to identify schools that need to improve. States have been concerned that under the formula spelled out in the law—a reauthorization of the Elementary and Secondary Education Act—large numbers of schools will be identified as failing to make adequate progress within a few years and be subject to increasingly serious consequences.

The rules also say that districts may not use “lack of capacity” to deny students in schools deemed in need of improvement the option of transferring to a better school.

Included in the rules are clarifications of some requirements on teacher quality, public school choice, and the provision of supplemental services for students in low-performing schools. But the department acknowledged it still needs to give further guidance in other areas, such as how to include students with severe cognitive disabilities in state accountability systems, and how to guarantee that special education teachers are competent in the academic subjects they teach.

“My initial reaction is that the regulations are going to make implementation more difficult for school districts,” said Jeff Simering, the legislative director for the Washington-based Council of the Great City Schools. “There are a whole variety of things that people are going to have trouble interpreting. I’m struggling to figure out what some of the requirements mean.”

The department received over 700 comments on the draft regulations. A number of those comments urged the department to give states more flexibility in using “rigorous” accountability models that states have already developed and that may achieve the same fundamental principles as the law, while differing in their approach. Many states, for example, rate schools on a performance index, give credit to schools for the academic growth of students below the proficient level, or use other “value-added” methods.

In a preamble to the regulations, Secretary of Education Rod Paige noted that the department had tried to provide states with “additional flexibility wherever possible” while faithfully implementing the “very specific, rigorous requirements” in the law. A state may continue to use its current accountability system, he wrote, “if that system integrates AYP, as defined in the statute and regulations.”

“In terms of AYP, it doesn’t seem like there’s too much new,” said Rolf K. Blank, the director of education indicators for the Council of Chief State School Officers, located in Washington.

During a question-and-answer period at the regulations’ unveiling two days before Thanksgiving, Mr. Hickok suggested that “the peer-review process is where we’re going to find out where things can be flexible.”

States are required to submit plans to the department by Jan. 31 detailing how they will meet the law’s accountability provisions, including each state’s definition of adequate yearly progress. Soon after, the department hopes to begin a peer-review process in which teams of department staff members and outside accountability experts will review state plans, with the goal of having those plans approved no later than next spring.

“I do think that’s where you’re going to see the conversation really get engaged,” said Mr. Hickok, who added that the department would work with states on a case-by-case basis.

“Frankly, I don’t think the statute provided for much flexibility,” said Mr. Simering of the Council of the Great City Schools, which represents large, urban districts. “I don’t see it in the regulations, and I think I agree with the regulations in that regard.”

Kati Haycock, the director of the Education Trust, agreed: “We’re pleased to see that the department has held firm on the law’s accountability requirements, but is also signaling a willingness to work with states on creating blended systems that combine what some are already doing with the new goals and focus of the law. This is the right next step.”

Ms. Haycock’s organization, based in Washington, conducts research and advocates policies aimed at strengthening education for disadvantaged students.

Alternative Routes

On teacher quality, the rules include several important clarifications of the draft regulations, which were published in TheFederal Register on Aug. 6. (“Long-Awaited ESEA Rules Are Released,” Aug. 7, 2002.)

The law requires that by the end of the 2005-06 school year, all teachers of the core academic subjects must be “highly qualified” in each subject they teach. It defines “highly qualified” educators as those who are fully certified through traditional or alternative routes and have demonstrated competency in the subjects they teach, either by having an academic major or its equivalent, or by passing a subject-matter test.

Critics had questioned whether individuals who are enrolled in, but have not yet completed, alternative routes should be considered “highly qualified.”

The final rules specify that teachers enrolled in alternative-route programs must receive high-quality professional development both before and while they are teaching; participate in programs of intensive supervision or mentoring; and complete their programs within three years. During that time, they also must show satisfactory progress toward earning their full teaching licenses.

The new requirements place some “pretty heavy responsibilities on states” to ensure that alternative routes achieve their potential, Undersecretary Hickok said last week. But he added, “I don’t think this represents anything onerous,” noting that many alternative-route programs have such features already.

Nevertheless, Ms. Haycock of the Education Trust said, “the devil is in the details.”

“For example,” she said, “when they talk about requiring intensive training before alternate-route teachers hit the classroom, what do they mean? Six hours? Six days? Six weeks? States, of course, will propose all these possibilities and more. How will the department respond?”

The rules also require states and districts to describe specific steps they will take to ensure that minority students and those from low-income families are not taught at higher rates than other children by “inexperienced, unqualified, or out-of-field teachers.” States and districts must measure and report on their progress in meeting those commitments.

In addition, the rules reiterate requirements that districts must notify parents in Title I schools that they can request information about the qualifications of their children’s teachers, and the schools must give parents “timely notice” when their children have been taught for four or more consecutive weeks by teachers of core academic subjects who are not highly qualified.

No Excuses on Choice

Mr. Hickok said that in writing the regulations, the department’s guiding principle was “what do we think will be in the best interest of students?”

As an example, he pointed to several clarifications regarding the provision of public school choice and supplemental services for students in schools that have consistently failed to make adequate progress.

Numerous people, in their comments on the draft rules, had asked whether capacity constraints—such as class-size limits, overcrowded schools, and health and safety requirements— limit a district’s obligation to provide public school choice to students in schools identified as needing improvement, corrective action, or restructuring under the law.

The rules make clear that districts may not use “lack of capacity” to deny eligible students transfers to schools not identified as needing improvement.

“We think the law requires the [local education agency] to take measures to overcome capacity issues,” Mr. Hickok said. “In the end, capacity should be no excuse for making sure students have options and choices.”

“That doesn’t mean if a school is full, they have to open the door,” he added. But it does mean the district has to find a way to provide parents with options.

“I understand that they don’t want us to misuse ‘capacity,’” said Bruce Hunter, a lobbyist for the American Association of School Administrators, based in Arlington, Va. “But I think capacity is a factor, and saying it isn’t doesn’t make it so.”

The regulations also specify that states and districts must ensure that students with limited proficiency in English and those with disabilities have access to supplemental services, including language assistance and accommodations. The issue of how to provide public school choice for students with disabilities who have “individualized education plans” will be addressed in additional guidance “very soon,” said Mr. Hickok.

Special Education

But Mr. Hickok admitted that the Education Department is still struggling with issues related to special education under the No Child Left Behind Act.

The law requires that all students be held to the same high standards, including students with disabilities. But many questions have arisen about how to ensure accountability for students with severe cognitive disabilities, in particular.

Earlier, the department had proposed that in determining adequate progress, states be permitted to hold a small group of students—those with significant cognitive disabilities—to alternative achievement standards, rather than the same performance standards as those for other students. But the department suggested that group should not exceed 0.5 percent of all students.

“To be honest with you, we did not come to closure on that issue,” said Mr. Hickok, who noted that setting such a rigid ceiling might not make sense. “While it does have some validity, it seemed like almost too blunt an instrument,” he said.

To make sure that students with disabilities are not excluded from state accountability systems, the final regulations require that the same grade-level content and achievement standards that apply to other students also apply to students who take alternative assessments. The department will soon publish a proposed exception to that policy for a small group of students with severe disabilities, and will seek public comment.

The regulations also clarify that teachers of special and bilingual education who are providing instruction in core academic subjects must be “highly qualified” in the subjects they teach, such as English or mathematics.

Mr. Hickok acknowledged that requirement would pose a challenge in many states, where special education teachers have not previously had to be certified in particular content areas. “Given the teacher shortage, especially in special education, that represents a significant challenge,” the undersecretary said.

That issue and others related to special education will also be dealt with in the reauthorization of the Individuals with Disabilities Education Act this coming year, Mr. Hickok said. (“Election Results Boost Special Ed. Vouchers,” this issue.)

However, he said, “I think No Child Left Behind in and of itself represents a substantial attempt to improve education for students with disabilities.”

States and districts have complained that the final regulations were not available sooner, given the tight timelines they are being held to under the law.

But Mr. Hickok said that, to his knowledge, this is the first time that final rules have been issued within a year of the ESEA’s reauthorization. “That’s no small accomplishment,” he said.

He added that, while the department has the authority to withhold money from states that fail to meet the Jan. 31 deadline for submitting state accountability plans, “we are mindful of the logistical and management challenge that they confront.”

“We also are very respectful of all they have done to establish accountability systems,” he said. “Having said that, our job is to enforce the law. Everyone recognizes this first year was a transition year. Our concern is that the transition year not turn into a rationale to delay what needs to be done.”

A version of this article appeared in the December 04, 2002 edition of Education Week as Final Rules Give States Direction, Little Flexibility


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