States Strive Toward ESEA Compliance

By Lynn Olson — December 11, 2002 14 min read
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Nearly a year after passage of the “No Child Left Behind Act” of 2001, states are working hard to comply with the federal law, a survey conducted by Education Week shows. But while states have made changes on some fronts, they have a long way to go on others.

In particular, states appear to have taken a wait-and-see attitude about changing their accountability systems or their requirements for teacher licensure to bring them into line with the reauthorization of the Elementary and Secondary Education Act. The U.S. Department of Education did not release final regulations on those topics until the week of Thanksgiving. (“Final Rules Give States Direction, Little Flexibility,” Dec. 4, 2002.)

“The states are struggling mightily to comply with the law, but this is a very challenging task,” said Jack Jennings, the director of the Center on Education Policy. The Washington-based research group plans to release its own report on ESEA implementation early next month.

“The states are working very hard and, if anything, the department hasn’t issued its guidance on a timely basis,” Mr. Jennings said.

As part of a survey of state education policy for the newspaper’s Quality Counts 2003 report, scheduled for release Jan. 9, Education Week surveyed all 50 states and the District of Columbia to find out what they were doing to comply with key provisions of the No Child Left Behind Act. Information on testing, school report cards, school accountability systems, and teacher quality was current as of Nov. 1.

Blurring the Lines

In general, states have moved forward fastest on testing. The federal law requires that states annually test students in reading and mathematics in grades 3-8 and once in high school, beginning no later than the 2005-06 school year. The law requires that states use tests aligned with their academic-content standards, either by building assessments specifically designed to reflect those standards or by modifying off-the-shelf tests.

Education Week‘s survey found that in the current school year, 19 states and the District of Columbia will test in both English and math in all the required grades. Of those 20, 17 use the same testing program in each grade, permitting results to be compared across grades. And 12 of those states report using tests designed to be aligned with their standards in each of those grades.

However, Education Week does not review the content of state tests to make such a determination. Instead, the newspaper gives credit in its Quality Counts ratings to states for having standards-based exams if they have tests specifically crafted to measure state standards, or if they report using commercial tests that were modified to better reflect state standards.

The field is changing, though. Under negotiated rules for state standards and assessment systems, released by the Education Department in July, states can use either criterion-referenced tests to gauge how well students have mastered the material in a state’s standards, or augmented norm- referenced tests to comply with the federal law. The latter are designed primarily to measure how students perform compared with their peers nationally, but have been modified to reflect a state’s standards.

“What used to be a hard-and- fast line between being a standards-based and being a norm-referenced achievement test was there, and now it isn’t,” said Wayne Martin, the special assistant to the executive director of the Council of Chief State School Officers.

“Many states are looking at augmenting norm-referenced achievement tests and using them as a standards-based instrument,” he said.

For its 2003 report, Education Week found at least 12 states have what could be called “hybrid” tests in place that combine commercial norm-referenced tests with some features of a standards-based system.

Of the jurisdictions using comparable tests in grades 3-8, Arizona, Alabama, West Virginia, and the District of Columbia will use off-the-shelf tests without augmentation in each of those grades this school year. The three latter have entered into compliance agreements with the federal government because their testing systems did not meet requirements of the 1994 version of the ESEA. Arizona also uses a standards-based test in grades 3, 5, 8, and 10.

The No Child Left Behind Act also requires that states test students in science at least once in grades 3- 5, 6-9, and 10-12 by the 2007-08 school year. Twenty-five states now administer a science test in each of those grade spans. (Ohio currently tests science in grades 4, 6, and 9.)

But it appears that only five—Delaware, Georgia, Florida, Tennessee, and Utah—would meet all the testing requirements under the federal law, if they kicked in this school year. South Dakota could meet all the requirements if the state’s new testing system is approved, as expected, by the legislature in early 2003.

At a press briefing late last month to discuss the final regulations for the law, Undersecretary of Education Eugene W. Hickok said federal education officials would be watching state testing systems closely, “making sure the assessments are adequately aligned with state standards. In far too many places, they’re not.”

The Education Department plans to conduct a peer review of state testing systems, in addition to its review of state accountability plans, to see if they comply with the new ESEA. At least a handful of states, including Maine, Nebraska, and Pennsylvania, hope to convince the department that they can comply with the law by using a combination of state and local tests in various grades.

Data, But No ‘Bite’

Many states are in fair shape, meanwhile, when it comes to meeting the new ESEA’s requirements on school report cards, which take effect this school year.

Education Week found that 47 states and the District of Columbia already have school report cards.Utah plans to release its first school report cards in fall 2003.

The law requires such report cards to show achievement for the student population as a whole and for specific demographic groups: students from racial and ethnic minorities, from poor families, with disabilities, and with limited English proficiency.

In 2002-03, many states report test data for at least one of those groups.

But only 16 states— California, Delaware, Hawaii, Idaho, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New York, North Carolina, Rhode Island, Washington, Wisconsin, and Wyoming—report test data in all the requisite categories. Illinois, South Carolina, and Texas include data on every subgroup but limited- English-proficient students.

Only 17 states have statewide student- identification systems that permit them to track the performance of individual students. The law endorses, but does not require, states to use data from state tests to develop a longitudinal system that links student test scores, length of enrollment, and graduation records. Three more states are constructing such systems, and North Carolina is piloting a program this school year.

“There is extensive conversation going on among the [state schools] chiefs and among the political leadership about improving the quality of the data that they collect,” said Brad Duggan, the president of the National Center for Educational Accountability, located at the University of Texas at Austin.

Still, he added, “most states really don’t report disaggregated ethnic data in a way that really looks at the performance of each of those groups by school.”

In general, said Mr. Jennings of the Center on Education Policy, few states are using subgroup performance in meaningful ways. “They disaggregate,” he said, “but disaggregation doesn’t have a bite to it.”

“But it will,” he added, referring to requirements that schools make “adequate yearly progress” both for their total student populations and for each subgroup.

“The bite will come next September, and that’s what has everybody nervous,” said Mr. Jennings, who was also a longtime aide to Democrats on the House education committee.

Confusion, Caution

States largely have been slower to revise their school accountability systems to comply with the new law, in part because final regulations were not released until late last month.

“I think there’s still a lot of confusion out there about what this all means,” said Margaret E. Goertz, a co-director of the Consortium for Policy Research in Education, a federally financed research center based at the University of Pennsylvania.

Many states are struggling with how to mesh their own, well- established accountability systems with the law’s demands around adequate yearly progress, or the formula used to determine whether schools are in need of improvement. Under the federal law, states must devise a definition of adequate progress that applies to all schools by the end of January, including a starting point for measuring adequate progress based on state test data from the 2001-02 school year.

The Education Week survey found that 29 states and the District of Columbia now rate or identify low-performing schools as part of their accountability systems. Twelve of those states base their ratings on test scores alone, while the rest also use other data, such as attendance rates, graduation rates, coursetaking patterns, and site visits.

Only nine states—California, Florida, Kentucky, Louisiana, Oklahoma, Rhode Island, South Carolina, Texas, and Vermont—plus the District of Columbia factor the performance of student subgroups into their school ratings.

In most cases, those states require schools to demonstrate progress for their lowest performers in addition to the student population as a whole, rather than for the specific subgroups spelled out in the ESEA.

Of the 29 states and the District that identify low-performing schools, 28 provide assistance to those identified as needing improvement, and 17 provide rewards to high-performing schools.

Twenty-two states and the District have consequences for low-performing schools. Many of the consequences parallel the penalties for persistently low-performing schools under the federal law, although the law only requires states to apply such penalties to schools that receive federal Title I money for disadvantaged students.

Title I schools that have failed to make adequate progress for three or more years must give students the option of choosing an approved provider of supplemental educational services, in addition to permitting students to transfer to higher-performing public schools. As of Dec. 6, only 15 states—Alabama, Arizona, California, Colorado, Maryland, New Jersey, New York, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Vermont, Washington, and Wisconsin—had released approved lists of supplemental-service providers.

Numbers Not Set

Moreover, a majority of states in the survey by Education Week had neither defined how they would measure adequate yearly progress nor established the minimum number of students needed in each subgroup for accountability purposes.

“Folks have been operating in good faith for some time, in terms of making accountability systems work within their states,” said James Watts, the vice president of state services for the Atlanta-based Southern Regional Education Board. “And by layering other systems on top of their existing systems, there’s always the possibility that there will be inconsistencies.”

California, like many other states, uses a performance index to rate schools that focuses more on growth than on whether students reach a specific bar, noted Suzanne Tacheny, a member of the state board of education. “That index is developed around a different assumption about what’s good performance,” she said. “There’s no line that says, once you get above a certain point, you’re good enough.”

Now, Ms. Tacheny said, the state must decide whether to align the index with federal requirements or devise a separate measure and then blend the two at the point of taking action regarding a school.

Under the ESEA, states can determine the minimum number of students needed in a subgroup for the results to be statistically reliable. Most have not yet done so. Where they have, the results vary.

For example, Maine, Maryland, Nevada, New York, North Carolina, and Texas require as few as five students in a subgroup for test scores to be reported to the public; others require a minimum of 30. Most states hover around a 10-student minimum for reporting purposes.

States typically plan to use higher minimum numbers for accountability purposes, ranging from 30 students per subgroup in North Carolina to 75 in Pennsylvania.

States are required to submit their accountability plans, including their definitions of adequate progress and their minimum group size, to the federal Education Department by Jan. 31. The department will conduct peer reviews of each state’s plan to determine whether it complies with federal law and regulations soon thereafter. Until those reviews are done, Ms. Goertz of the University of Pennsylvania pointed out, it’s not clear what will be permissible.

“We don’t yet know enough to mandate or push people into one specific model, whether it’s testing or whether it’s accountability systems,” said Theodor Rebarber, the president of AccountabilityWorks, a Washington-based nonprofit research and consulting group that works with states. “We should still encourage experimentation with different, well-thought-out models.”

“I hope for that reason, the department doesn’t penalize states that are a little creative in how they interpret the statute,” he said.

‘Highly Qualified’ Teacher

States also are grappling with how to define a “highly qualified” teacher. The law requires every teacher in the core subjects to be highly qualified in each subject they teach by the end of the 2005-06 school year. States must also report on the distribution of highly qualified teachers across high- and low-poverty schools.

“Many of the states have not come up with their own definition of a highly qualified teacher, but they’re de facto using the government’s definition without having placed it in any statutory language,” said Twanna LaTrice Hill, a policy analyst for the Denver-based Education Commission of the States.

At the secondary school level, “highly qualified” teachers must be fully licensed in their subjects and possess undergraduate majors or the equivalent, or pass subject-matter tests.

Today, 33 states and the District of Columbia require subject-matter tests for teachers to earn a beginning license. And 29 states and the District require all high school teachers to have majored in the subjects they intend to teach. (California requires teachers either to have a major or to pass a subject-matter test.)

Only four states and the District of Columbia require all middle school teachers to have majored in the subjects they will teach.

Even though many states’ certification requirements seem close to satisfying the law, they still offer provisional licenses or emergency waivers, according to Ms. Hill.

“So they may be partly in compliance because their certification requirements are high,” she said, “but then they waive them.”

Education Week found that only 11 states—California, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, and Wyoming—have some sort of cap on the number of teachers who can teach outside their areas of subject-matter licensure. Of those, only Kentucky prohibits the practice of out-of-field teaching.

Moreover, some of the state caps appear weak. For example, in Nebraska, up to 20 percent of teachers in a secondary school can teach out of their fields of expertise.

New York is the only state that will bar schools from hiring any teachers with emergency licenses, effective next fall. The ban already applies to the Empire State’s lowest-performing schools.

Twenty-two states include some kind of information about teacher qualifications on school report cards. Only Louisiana, New York, Texas, and Wyoming report to the public on the distribution of teacher qualifications across schools with different characteristics.

A vast majority of states have yet to establish annual measurable objectives for increasing the number or percent of highly qualified teachers, or the percent receiving high-quality professional development, as required by the federal law, said Ms. Hill of the ECS.

What to Do?

Most states are still in the process of figuring out exactly what they must do to meet the mandates of the No Child Left Behind Act in a variety of areas, Mr. Jennings said.

“School people keep hearing rumblings about all these major changes, and they don’t see it much yet,” he said.

“And that’s because this year, the systems are being put in place—the testing systems, the accountability systems, the data-collection systems. It’s all internal work.”

“But it’s all going to come down to the local level next year,” he added. “And if it isn’t coherent, it’s going to create a very messy situation.”

Education Week‘s research team, led by Research Director Kathryn M. Doherty, conducted the 50-state survey for Quality Counts 2003.

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A version of this article appeared in the December 11, 2002 edition of Education Week as States Strive Toward ESEA Compliance


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