Faced with a conflict between state and federal laws, Texas officials have come down on the side of their own law and set up a possible showdown with the U.S. government over millions of dollars in education aid.
In determining which schools and districts were meeting annual goals under the federal No Child Left Behind Act, the state last month granted a host of appeals from districts and schools that said they should get credit for following less stringent state rules for assessing special education students.
As a result, 431 districts and 1,312 schools were considered by Texas to be making adequate yearly progress, or AYP, even though they didn’t follow the federal law’s strict rules for counting the test scores of students with disabilities.
“There was simply no way that schools could have followed [federal rules] without violating state statutory requirements,” said Criss Cloudt, the associate commissioner for accountability and data quality for the Texas Education Agency.
States will be watching how the U.S. Department of Education reacts to the Texas decision and whether it withholds any of Texas’ $1 billion annual share from the No Child Left Behind Act.
“If [federal officials] do anything to grant Texas this, it could open the floodgates around the country,” said Scott Young, a senior policy specialist for the National Conference of State Legislatures.
A U.S. Department of Education spokeswoman said last week that the federal officials haven’t decided how to respond to Texas’ action.
“We’re reviewing the information we currently have and will be talking to them to get a better grasp of what they’re doing,” Susan Aspey, a department spokeswoman said in an e-mail.
Federalism in Question
As state officials nationwide have faced carrying out the 3-year-old law, they have chafed at complying with federal requirements that conflict with their state laws. A proposed measure in Utah, for instance, calls for letting state laws trump the federal law.
Two days before the Texas announcement, the Denver-based NCSL issued a report saying the law championed by President Bush unfairly usurps state policies. The group listed changes it wants from Congress and the federal Education Department. (“NCLB Law Needs Work, Legislators Assert,” Feb. 24, 2005.) State officials also have been seeking waivers from Margaret Spellings, who was sworn in as the U.S. secretary of education in January.
While Secretary Spelling has said she would consider granting states leeway on the rules for compliance with the law, she has said she won’t bend on its key requirements.
Last week, for example, she denied a request from Connecticut to waive the law’s requirement that students be tested in grades 3-8 and once in high school. The state had asked to continue its practice of assessing students in grades 4, 6, 8, and 10.
“We must measure annually and in each grade to determine if these [achievement] gaps are being closed, and, if they are not, adjustments must be made,” Ms. Spellings said in a Feb. 28 letter to Connecticut’s commissioner of education, Betty J. Sternberg.
Ms. Spelling added that the Education Department is “committed to including every student in the assessment and accountability system,” citing the federal rule that Texas officials overrode in making its AYP decisions.
The federal testing rule says that 1 percent of a school’s or district’s enrollment may be tested against other than their grade-level standards and still be considered proficient for accountability purposes.
Any students above the 1 percent figure who don’t take state or alternative tests for the grade level in which they are enrolled are to be considered as not proficient for purposes of determining AYP.
State officials argue that the 1 percent rule is unfair because special education students aren’t always equally distributed across districts or among schools, Mr. Young of the NCSL said.
In Texas’ case, local school officials followed state law allowing for alternative tests for special education students when the students’ individualized education programs call for them. Under state law, the IEP team, rather than the state, gets to set a student’s passing standard for such tests.
In the spring of 2004, almost 10 percent of all students took a state-approved alternative test instead of the Texas Assessment of Knowledge and Skills, or TAKS.
Texas officials also point out that the federal Education Department didn’t make the so-called 1 percent rule final until December 2003, just two months before Texas began testing. “You just can’t turn the ship that quickly,” said Gene Lenz, the deputy associate commissioner for special programs, monitoring, and interventions for the Texas Education Agency.
In deciding which districts and schools made adequate yearly progress for the 2003-04 school year, Texas Commissioner of Education Shirley Neeley granted appeals to districts and schools that said their special education populations failed to reach the districts’ achievement targets solely because of the 1 percent rule.
After the appeals, 86 districts failed to make AYP. Without the appeals, almost half the state’s 1,227 districts would have fallen short of the AYP goals. Without the waivers, 1,718 of the state’s 7,813 schools, or 22 percent, wouldn’t have made AYP. With the waivers, all but 402 did.
The Texas decision is at odds with the basic tenet of the No Child Left Behind Act, according to a supporter of the federal law.
“That’s a real step backward to say they have an alternative test and they’re not going to count [students with disabilities] for AYP,” said Delia Pompa, the director of the Achievement Alliance, a Washington-based coalition that supports the No Child Left Behind Act.
Ms. Cloudt said the agency was working with state legislators to revise state law. “Our goals are identical to No Child Left Behind,” she said. “We’re trying very hard to implement policies in concert with the federal accountability system.”
A version of this article appeared in the March 09, 2005 edition of Education Week as Texas Stands Behind Own Testing Rule