A negotiating committee reached consensus last week on proposed federal rules for state standards and assessment systems under the revised Elementary and Secondary Education Act.
While the committee spent 4½, often intense days in a suburban Washington hotel polishing and clarifying the draft language initially presented by the Department of Education, it made few substantial changes.
The proposed regulations, which will be published in the Federal Register for additional public comment, would set a high bar for states that plan to use a mixture of state and local tests, or of criterion-referenced and norm- referenced tests, to measure student performance against state standards.
Even so, Minnie Pearce, a parent representative from Detroit, seriously considered withholding her support of a key section of the draft rules because of concerns that the resulting testing systems would not provide parents with clear information. She withdrew her objection after Joseph F. Johnson, the department’s director of compensatory education programs, made it clear that state assessment plans would have to be approved by the federal Education Department.
“He gave me some insight,” Ms. Pearce said last week, “but it still didn’t brighten up my day.”
Ms. Pearce, along with 21 other educators and parents from around the country, joined by two Education Department officials, spent parts of two weeks here in what is called “negotiated rulemaking.”
The “No Child Left Behind” Act of 2001, the measure President Bush signed in January reauthorizing the ESEA, required the formal process for the bedrock subject of standards and assessment. The department, however, will have the final say on those rules, and does not have to bring in negotiators as it crafts the myriad other regulations and guidelines to put flesh on the bones of the new education law.
Before that occurs, however, a federal district court in Washington may likewise have something to say. Four groups sued the Education Department just as the negotiating process was about to begin, arguing that the agency had failed to follow the law’s requirement that the committee’s membership include “an equitable balance” between educators and their clients: parents and students. If the plaintiffs ultimately prevail, the department may have to convene a new committee. (“Groups Challenge Makeup of Rulemaking Panel,” March 20, 2002.)
The department’s draft rules, in effect the committee’s blueprint, had drawn criticism from some quarters, including members of Congress. Critics said the rules would grant states too much flexibility in putting together their assessment systems, flexibility that state officials by and large welcomed.
In fact, last week six Democratic senators who helped craft the law criticized some elements of the draft regulations. “Of greatest concern,” they wrote in a March 20 letter to Secretary Rod Paige, “is the department’s proposal to allow a patchwork of state and local assessments.”
They said this approach would make it “virtually impossible” to compare student achievement across districts. The signatories were Sens. Jeff Bingaman of New Mexico, Edward M. Kennedy of Massachusetts, Christopher J. Dodd of Connecticut, John Edwards of North Carolina, Hillary Rodham Clinton of New York, and Joseph I. Lieberman of Connecticut.
Language added by the committee to the department’s proposed rules would require that state assessment systems “be designed to provide a coherent system across grades and subjects.” That wording is intended, in part, to put the burden on states to prove that a mixture of tests could yield valid and useful information.
The negotiators also agreed that if states use a mixture of state and local tests to measure state academic standards, they must show that all of the local tests are “equivalent to one another and to state assessments, where they exist, in their content coverage, difficulty, and quality.”
The two testing experts who served as advisers to the committee admitted it would be difficult for states to achieve statistical “equivalency” across tests, particularly if states are using a range of pre-existing assessments. “That would be a rather significant challenge,” said Thomas Fisher, the state testing director in Florida.
“The more tests there are, the more difficult it will be to do all this,” agreed David Francis, a psychometrician from the University of Houston.
The Democratic senators also said they are worried about provisions in the draft regulations that would allow the use of norm-referenced tests, which are designed primarily to measure how students perform compared with a nationally representative sample of peers. Under the rules as blessed by the panel, norm- referenced tests must be modified to reflect the state’s academic-content standards. The senators said they appreciated that caveat, but still had concerns.
"[W]e worry that [this]... will lead to a step backward, rather than forward, with respect to the quality of state assessments,” they wrote.
The committee members spent much of their time hammering out requirements for including all students in a state’s testing system, among them homeless students, students with disabilities, and those with limited fluency in English.
One of the biggest issues was whether states would be permitted to test special-needs students using “off grade” or “out of level” testing. That means, for example, that an 8th grade special education student might take a test designed to measure 5th grade content standards because the student was working at that grade level.
Charlotte Harris, a senior director of program development for the Boston public schools, wanted the draft regulations to clarify that states had that option, at least for some students. But Education Department officials did not want to provide a loophole that would permit states or districts to test large numbers of students against anything less than grade-level standards.
The draft rules approved by the negotiating committee specify that states must provide “appropriate accommodations” for special-needs students and that those accommodations must measure a student’s achievement “relative to the state’s academic content and achievement standards for the grade in which the student is enrolled.”
States would also have to provide one or more “alternate assessments” for students with disabilities who couldn’t participate in all or part of the state assessments, even with accommodations. Although the committee did not define what those alternative tests could look like, the language leaves open the possibility that off-grade testing might be permitted as one form of alternative assessment for at least some students.
Ms. Harris said she was pleased with the compromise. “We got what we needed,” she said.
But Susan B. Neuman, the assistant secretary for elementary and secondary education and a participant in the negotiations, said she was dissatisfied with the compromise because of continued concerns that states and districts would identify a disproportionate number of students as needing out-of-level testing to avoid strict accountability.
She said the department would address those concerns through the proposed regulations for “adequate yearly progress,” rules that will clarify how states determine the amount of improvement schools and districts must make each year.
Under the revised ESEA, students from schools that fail to make such progress for several years will be allowed a menu of supplemental services and public school choice.
At best, Ms. Neuman suggested, off-grade testing might be appropriate for the fewer than 2 percent of students who have profound disabilities. “It will be clarified in [the “adequate yearly progress” rules] to eliminate any potential loopholes,” she said.
The rules as they emerged from the committee’s deliberations also would clarify that states must provide appropriate accommodations for all students with disabilities, including those identified under the Individuals with Disabilities in Education Act and those covered under Section 504 of the Rehabilitation Act of 1973.
But the regulations would stipulate that only those identified under the IDEA should be counted as “disabled” when states break down test results to compare the achievement of students with disabilities and that of all other students, as required in the ESEA. That’s because students covered under Section 504, those with disabilities such as attention deficit hyperactivity disorder who typically require only special help from a regular teacher, do not have individualized education plans and do not receive special education services.
Similarly, the rules would specify that states must include homeless children in their testing, reporting, and accountability systems. But the states would not report the performance of homeless students as a separate subgroup. Rather, the states would include each of those students in whichever subgroup was appropriate.
A version of this article appeared in the March 27, 2002 edition of Education Week as Negotiators Retain Heart of Ed. Dept. Proposals