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 if Congress fails to make changes.
So far, Idaho, Montana, and South Dakota have notified the U.S. Department of Education 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 U.S. Secretary of Education Arne Duncan, each has said it will freeze its proficiency targets at 2009-10 levels in hopes of limiting the number of schools that fail to make adequate yearly progress, or AYP, and face penalties under the nine-year-old federal accountability law.
Kentucky is taking a different tack and has asked permission to use its own accountability system in place of NCLB.
But the Education Department is warning states that flouting the law will not be tolerated, even if Congress fails to rewrite the Elementary and Secondary Education Act—the current version of which is NCLB—before the start of the 2011-12 school year.
“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,” department spokesman Justin Hamilton said Tuesday. “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 Montana was out of compliance for not raising its proficiency targets for the 2010-11 school year.
In an interview Tuesday, 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.”
Feuding Over Flexibility
Although President Obama has said he wants an overhaul of ESEA, Congress is moving slowly. The U.S. House of Representatives is considering several tightly focused bills, while the U.S. Senate has produced nothing and is still informally discussing what a new NCLB would look like.
Mr. Duncan has announced that he will offer 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,” Idaho Superintendent of Public Instruction Tom Luna wrote to Mr. Duncan in a June 21 letter. “If Congress and the administration will not act, states like Idaho will.”
States aren’t the only ones wanting answers on Mr. Duncan’s “plan B.”
In a June 23 letter to Mr. Duncan, Rep. John Kline, R-Minn., the chairman of the House education committee, said “any initiative that could exacerbate the frustration and uncertainty facing schools is the wrong direction for our nation’s education system.” He asked the education secretary for more details on his waiver plan by July 1.
The department apparently didn’t meet that deadline. On Tuesday, Mr. Hamilton said, “We are in touch with Rep. Kline’s office about the letter and are working to get [a response] to them soon.”
Also on Tuesday, Rep. Kline took public note of a new Congressional Research Service report he said “warns of potential legal limits and challenges to the secretary’s proposal to grant conditional waivers.”
However, from the time Mr. Duncan first raised the possibility of waiving some NCLB requirements, department officials have stressed that the NCLB law allows the education secretary to do so, except in certain limited circumstances.
“As part of this broad authority to waive requirements, the secretary has the authority to set reasonable conditions and limits on these waivers to ensure that the ESEA programs subject to these waivers are carried out in a responsible and effective manner to improve student achievement,” spokesman Daren Briscoe said last month as some in Congress questioned Mr. Duncan’s strategy.
Schools that continue missing their AYP targets face an escalating set of sanctions, and each year, the targets get higher. Mr. Duncan, in trying to prod Congress to quickly reauthorize the law, has predicted that when the test scores are all tallied from the 2010-11 school year, 82 percent of them will be labeled “failing.”
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 NCLB.
“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 her April 25 letter to the department informing them 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 the 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 thing 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 NCLB.
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 Education Secretary 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.”
A version of this article appeared in the July 13, 2011 edition of Education Week as More States Defiant on NCLB Compliance