NCLB Plan Would Add New Rules

Spellings proposes changes on testing, tutoring, data
By David J. Hoff — April 24, 2008 7 min read
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Includes updates and/or revisions.

With Congress at a standstill in its work to reauthorize the No Child Left Behind Act, U.S. Secretary of Education Margaret Spellings last week launched her latest and most extensive administrative effort to alter the law.

In the most comprehensive and final in a series of actions intended to change how the law is carried out, Ms. Spellings formally proposed a package of new regulations that would require state and local school officials to provide more and better information about high school graduation rates, student test performance, and the availability and quality of tutoring under the federal law.

She described the new policy tools as “bulldozers” designed to “tear down barriers to reform” when she announced them April 22 at the Detroit Economic Club.

The proposed rules, which are now open for public comment, would standardize the definition states use in determining graduation rates, require schools to make extensive efforts to ensure eligible students know they can transfer to different schools or sign up for free tutoring, and force states to publish their scores on the National Assessment of Educational Progress alongside their own test results. The rules also would clarify that states’ tests should assess students on more than basic skills.

The secretary’s plan is a “slapdash approach” that is a “poor substitute” for a congressional reauthorization of the 6-year-old law, said Rep. George Miller, D-Calif., the chairman of the House Education and Labor Committee.

“They had the opportunity to participate in reauthorization,” Rep. Miller said in an interview, referring to Ms. Spellings and other Bush administration leaders. “They chose not to. They chose, in fact, to sabotage it.”

Despite Rep. Miller’s objection to Secretary Spellings’ approach, he didn’t criticize any specific part of the proposed rules, saying that neither he nor his staff had thoroughly reviewed them.

Sen. Edward M. Kennedy, D-Mass., his counterpart in the Senate, issued a statement supporting the proposal.

The rules “include important improvements for implementing No Child Left Behind,” said Sen. Kennedy, the chairman of the Senate Health, Education, Labor, and Pensions Committee, adding that his committee continues to work on a bill to reauthorize the law.

Wait Until Next Year

Most Washington observers—including Rep. Miller—believe that Congress won’t reauthorize the NCLB law this year. The law, which is the latest version of the 1965 Elementary and Secondary Education Act, requires states to assess students in reading and in mathematics in grades 3-8 and once in high school. Districts and schools must meet achievement targets every year based on bringing all their students to proficiency on those exams by the end of the 2013-14 school year.

The law includes language that keeps its rules in place past its original authorization period, which formally ended last Oct. 1.

The package of rules announced by Secretary Spellings would make several changes in the way that districts and schools report progress on graduation rates and implement efforts to help students in schools that fail to make targets for adequate yearly progress, or AYP, toward the 2013-14 goal.

But the Bush administration is unlikely to be in office to fully carry out the proposal, many observers say.

In the proposed rules, published in the April 23 edition of the Federal Register, the Department of Education said it would accept comments from the public for 60 days. If the department reviewed those comments and published final rules 60 days after that—a short turnaround for federal regulatory action—that would mean the rules wouldn’t be in place until late August.

By then, many districts will have begun the 2008-09 school year, said Jeff Simering, the legislative director of the Washington-based Council of the Great City Schools, which includes more than 60 of the nation’s large urban districts.

“These wouldn’t get finalized, at best, until the 11th hour,” he said. Some of the new rules might be impossible to comply with. One proposed rule would require districts to inform parents of their children’s eligibility to transfer to another public school or receive free tutoring at least two weeks before the beginning of the school year.

Carrying Out the Law

The U.S. Department of Education last week proposed a set of regulations to clarify how schools, districts, and states implement several key areas under the No Child Left Behind Act.

High School Graduation Rates

States would be required to use graduation rates that track cohorts of students as they progress through high school. They would need to have those methods in place by the end of the 2012- 13 school year. The formula is the same as the one all states agreed to use in a 2005 compact among the nation’s governors.

In reporting graduation rates in the 2008-09 school year, states, districts, and schools would need to publish data for every subgroup of students tracked under the law. To make adequate yearly progress, or AYP, districts would need to meet state goals to improve their graduation rates. Starting in the 2012-13 school year, all schools’ AYP status would be determined based on their graduation rates.

The rules also would require states to adopt goals that would demonstrate “continuous and substantial” progress on improving their graduation rates.

Choice and Tutoring

Districts would need to take action to expand participation in choice and supplemental educational services before they could use the money reserved for those services for general purposes under Title I.

Those actions would include:

• Coordinating with community groups to notify parents of their options to transfer their children to a new school and/or to enroll them in free tutoring;

• Informing parents of their eligibility for choice and/or SES two weeks before the beginning of the school year;

• Ensuring that forms used to sign up for choice and SES were “widely available” to parents on the Internet and through other sources;

• Letting students sign up for SES throughout the school year; and

• Giving tutoring companies access to schools so they could tutor students there.

If a district didn’t do these things, it would need to reserve its set-aside for choice and SES to spend on those services in the next academic year.

‘N’ Size

States would be required to re-evaluate the minimum number of students in a demographic subgroup that a school or district must have to be held accountable for that subgroup. The number is commonly known as the “n” size. Under the proposal, each state would be required to validate that its “n” size was “no larger than necessary to ensure the protection of privacy for individuals and to allow for statistically reliable results of the aggregate performance of the students who make up the subgroup,” the proposed rules say.

State Testing

The rules would clarify that states’ tests should include questions “that measure both higher-order thinking skills ... as well as knowledge and recall items to assess the depth and breadth of mastery of a particular content domain.”

The rules also would require states to publish their reading and mathematics scores on the National Assessment of Educational Progress alongside the scores on their own tests. Districts also would be required to list the states’ NAEP scores when publishing their own scores on state tests.

SOURCE: U.S. Department of Education

Even if the regulations are in place in time for the coming school year, it would be unreasonable to expect districts and states to comply with them so soon, said Mary Kusler, the assistant director of government relations for the American Association of School Administrators, based in Arlington, Va. “It’s not fair to ask them to be accountable for stuff they haven’t had time to prepare for,” Ms. Kusler said.

‘N’ Sizes

One proposed change that almost certainly would not be implemented until the next administration involves the technical but significant issue of “n” sizes. An “n” size sets the minimum number of students—in specific racial, ethnic, socioeconomic, and other categories—that a school or district needs to have before it is required to meet achievement goals for that subgroup in order to make AYP. Schools and districts in a state with a relatively large “n” size can have an advantage in meeting achievement targets.

The new rules would require states to revise their NCLB accountability plans to explain whether their “n” sizes are “no larger than necessary to ensure the protection of privacy for individuals and to allow for statistically reliable results of the aggregate performance of the students who make up the subgroup.”

By the time states submit their changes, Mr. Simering said, a new president and a new education secretary will be in office.

‘Broad Support’

In announcing the latest proposal, Ms. Spellings said many elements of the plan “have gained broad support” in conversations about how to strengthen the federal law.

In previous administrative actions, Ms. Spellings has created a pilot project to allow states to make accountability decisions based on gains in individual students’ test scores. The law as enacted requires that such decisions be made by comparing each year’s cohorts of students against the cohorts in the same grades the previous year.

In March, Secretary Spellings also launched a pilot project allowing up to 10 states to differentiate their interventions in schools and districts failing to meet their AYP goals, based on how far they are from reaching those goals. (“States Get Flexibility on Targets,” March 26, 2008.)

Ms. Spellings said she is using her administrative powers because Congress and the Bush administration had been unable to agree on a reauthorized version of the NCLB law. “We’ve worked hard the last two years to get a reauthorization,” she said in a press conference after her Detroit speech that was made available via conference call. “I wish we had a good and vigorous new law we were writing these rules around. We don’t.”

Rep. Miller said one reason for the stalemate over the law’s future is Secretary Spellings’ opposition to a discussion draft of a bill he and the ranking Republican on the House education committee released last fall—the most extensive and detailed proposal for revising the law. (“Spellings Takes Issue With NCLB Draft,” Sept. 12, 2007.)

Rep. Miller and others questioned Ms. Spellings’ assertion that the proposed rules represent a consensus on the next steps toward fixing the NCLB law.

Graduation Rates

On the issue of graduation rates, the National Governors Association has been working with all states since 2005 to build the data systems needed to measure graduation rates by tracking students starting in 9th grade and determining whether they graduate four years later, whether from their original high schools or from ones elsewhere.

The Education Department proposal essentially would adopt the same method of calculating graduation rates that the NGA is using.

But state officials are not welcoming a federal mandate that states join their effort. The Washington-based NGA would prefer that the movement to adopt the graduation rate remain voluntary, said Christopher Cashman, a spokesman for the association’s Center for Best Practices.

The proposed rules also would require states, districts, and schools to demonstrate “continuous and substantial improvement” on their graduation rates from one year to the next. That’s a response to concerns that most states require schools to make only minimal improvements in those rates from one year to the next, or to meet very low graduation goals.

Ms. Spellings’ plan also would require states, districts, and schools to publish data for every subgroup of students tracked under the NCLB law. States would be required right away to use subgroup data to determine whether districts have met their AYP goals and to use such data for individual schools no later than 2012-13.

The NGA effort doesn’t include such extensive reporting and accountability requirements.

Managing Editor for Special Projects Lynn Olson and Staff Writer Michele McNeil contributed to this report.

A version of this article appeared in the April 30, 2008 edition of Education Week as NCLB Plan Would Add New Rules


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