Requests Win More Leeway Under NCLB

By Lynn Olson — July 08, 2005 8 min read

Federal officials by late last week had sent decision letters to 16 states approving at least some of their requested changes to accountability plans under the No Child Left Behind Act, which should make it easier for schools and districts to show progress. Another 31 states are awaiting such letters, although many have received oral approvals or denials.

The slew of requests—including proposals that federal officials have rejected in the past—was spurred, in part, by U.S. Secretary of Education Margaret Spellings’ April 7 pledge to take a more “common sense” approach to carrying out the law.

The large number of proposed revisions has left the Department of Education scrambling to provide a response in time for states to identify before the start of the new school year the schools and districts in need of improvement. The logjam has displeased some state officials who were already upset about implementation of the 3½-year-old federal law.

“The U.S. Department of Education has taken more than five months to act on requested amendments to Virginia’s accountability plan that, for the most part, have already been granted to other states,” Thomas M. Jackson Jr., the president of the Virginia board of education, complained in a statement last month. “This continued disrespect toward a state that has faithfully implemented the No Child Left Behind Act of 2001 is bewildering.”

“From where we sit, the process is slow,” said Patricia I. Wright, the deputy superintendent of education in Virginia, which submitted its initial request in January. “But the issues are complicated, so to give credit to the U.S. Department of Education, they have taken quite a bit of time to consider each state’s individual request.”

The failure to make states’ proposed changes public also has bothered advocacy organizations, which are concerned that states are trying to water down their accountability plans without public scrutiny.

NCLB Implementation Changes

As of July 7, the U.S. Department of Education had approved, via final decision letters, at least some of the requested changes to 16 states’ accountability plans under the No Child Left Behind Act. The most commonly approved amendments are:

Raising the minimum subgroup size:
Georgia (for all subgroups); Minnesota (for students with limited English proficiency, from 20 to 40)

Using a “confidence interval” of 99 percent in calculating adequate yearly progress:
Mississippi, Wisconsin

Using a ‘confidence interval’ of 75 percent under the law’s “safe harbor” provision, which provides a second look at schools and districts that did not make AYP initially:
Delaware, Indiana, Oklahoma, Wisconsin

Averaging results across years:
Alabama and Maryland will average participation rates over a three-year period; Minnesota will average proficiency rates for up to two years

Identifying districts for improvement only when they do not make AYP in the same subject for two consecutive years in elementary, middle, and high school:
Alabama, Indiana, Maryland, Mississippi, Oregon, Wisconsin

Revising annual AYP targets to increase in 10 equal increments through 2014:

Adjusting upward the percent of proficient students with disabilities in schools that failed to make AYP based solely on their special education subgroup:
Georgia, Idaho, Maryland, Mississippi, Oklahoma, Tennessee

SOURCE: U.S. Department of Education

“If this process is going to be perceived as having any real credibility, then it needs to be conducted more in the open,” said Dianne M. Piché, the executive director of the Citizens’ Commission on Civil Rights, a Washington-based watchdog group. She noted that states’ proposed amendments to their accountability plans are not posted on the federal Department of Education’s Web site until after the department has acted, and that the decision letters often are not posted right away. The department does not post rejected proposals.

“Decisions are being made below the radar screen,” contended Michael A. Resnick, the associate executive director of the National School Boards Association. “It’s very difficult for real people at the local level to get a sense of what the larger picture is.”

The federal law requires states to test students in reading and mathematics in grades 3-8 and once in high school. Those results are used to help determine whether schools and districts are making adequate progress, so that all students score proficient on state tests by 2013-14, with a series of cascading interventions for schools and districts that miss their annual targets. Each state must submit an accountability plan for approval by the federal government that describes in detail how it is carrying out the law’s accountability provisions. States can request changes to their accountability plans at any time.

In January, federal officials notified states that they had until April 1 to submit proposed amendments to their accountability plans that would affect how they calculate progress based on data from the 2004-05 school year. In April, that deadline was extended to June 1 so that states could take advantage of additional leeway offered by the federal government.

Most notably, Ms. Spellings sent a letter to state schools chiefs May 10 outlining new options for determining the progress of students with disabilities. Forty-two states have asked for that flexibility, including a number of states that had to revise their original requests.

Tinkering and Tweaking

Many of the changes approved so far reflect flexibility already granted to other states. For example, Florida, Georgia, Minnesota, and Virginia all received permission to increase the minimum number of students who must be in a subgroup before a school is held accountable for that subgroup’s performance.

That action has raised concern among civil rights organizations, said Ms. Piché, because as the minimum subgroup size rises, many schools will no longer have to demonstrate progress for some populations of students, such as those who receive special education services.

“With any of these decisions, I think the ultimate test should be how many children are being counted, and how many children are not being counted,” she said.

A number of states also have asked to use a statistical technique known as a “confidence interval” to help determine with greater reliability whether schools have met their achievement targets. States also have received permission to identify districts for improvement only when all three grade spans—elementary, middle, and high school—do not make adequate progress in the same subject for two years in a row.

Florida and Missouri got the go-ahead to revise their annual achievement targets for schools, replacing a large jump in those targets in 2004-05 with smaller, annual increments. And several states received permission to include in their high school graduation rates special education students and English-language learners who take more than four years to earn a diploma.

“This seems to be the game that we’re into,” said Mr. Resnick of the NSBA, based in Alexandria, Va. “Limited modifications are being made, perhaps to enable some schools to make adequate yearly progress that hadn’t before. But you run out of room to do that.”

Pushing the Envelope

Other states are trying to push the Education Department farther, although so far they have not succeeded. Connecticut, Virginia, and Washington want to limit public school choice and tutoring to students in subgroups that did not make adequate progress, rather than to all students in a school identified for improvement. So far, the department has rejected that request.

Minnesota, Virginia, and Washington state also want to identify a school or district for improvement only if the same subgroup misses its achievement targets in the same subject for two years in a row, another proposal that federal officials have turned down. And Minnesota and Virginia hope to reverse the order of the remedies, so that students would be offered tutoring before public school choice, a proposal that is pending.

States such as Washington also have repeated earlier requests to exempt students who are new to the United States from taking tests in English for three years or until they have reached a minimum level of English proficiency, whichever comes first.

Although federal officials have rejected such requests in the past, as Mary Alice Hueschel, a deputy superintendent of education in Washington state acknowledged, “honestly, our approach was to keep our issues up front, knowing that we’ve been told no more than once.”

But in a June 22 statement, Connecticut Commissioner of Education Betty J. Sternberg complained, “the increased flexibility which the federal agency has promised simply is not happening for Connecticut.”

She noted that the department had agreed to only two minor amendments to her state’s accountability plan. Two others were identified as “acceptable … with modifications,” while the rest were essentially denied.

“An answer to Connecticut’s central request—to use frequent, classroom-based ‘formative’ tests in grades 3, 5, and 7, rather than add statewide standardized accountability tests in those grades—was put on hold,” she said.

Federal officials also rejected a request to test some students with special needs at their instructional levels, not their grade levels. As a result, Ms. Sternberg said, Connecticut will have to devise a separate set of tests for special education students in grades 3-8, “adding tremendous additional costs to the estimated $8 million shortfall in federal funding for NCLB test development.”

Connecticut’s attorney general has said he plans to sue the federal government over the law.

2 Percent Option

One of the biggest questions is which states will be able to use new flexibility in measuring the progress of special education students.

In May, Secretary Spellings said the department would soon issue a notice of proposed rulemaking that would permit states to draft “modified” achievement standards, and tests based on those standards, to determine whether a limited group of students with “academic disabilities” was making progress. According to the department, such students make up about 2 percent of the school-age population.

Until the final regulation is in place, states that show they are meeting a set of core conditions can choose an interim option that allows them to adjust the percent of proficient students with disabilities upward. Only states that intend to write “modified” achievement standards and tests are eligible for the short-term flexibility.

Forty-two states applied for such leeway. So far, 29 have received at least oral approval; six more have been rejected. Those states may resubmit a different proposal for review, according to department officials.

Though many states are hoping to use the 2 percent option for the accountability decisions they make this summer, Ellen Forte-Fast, an education consultant who has analyzed state accountability plans for the Washington-based Council of Chief State School Officers, asserted that “nobody is going to be helped.”

“This is the appearance of flexibility,” she said. “It’s not flexibility. It doesn’t have any impact.”

After running a simulation model, for instance, West Virginia officials discovered that the so-called 2 percent rule did not help more than one or two schools, said Liza Cordeiro, a spokeswoman for the state education department. In Delaware, based on preliminary information, only about 16 schools did not make adequate progress solely because of their special education subgroups, and the new flexibility helped only a handful of those schools.

“It did help a couple, so anything that would help a couple is certainly worth it,” said Robin R. Taylor, Delaware’s associate secretary of education for assessment and accountability.


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