Special Education

States to Get New Options on NCLB Law

By David J. Hoff — April 12, 2005 6 min read
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U.S. Secretary of Education Margaret Spellings announced this deal for states last week: Prove your student achievement is rising, and I’ll give you new flexibility in meeting federal mandates.

The Department of Education will entertain proposals from states to waive rules under the federal No Child Left Behind Act, Ms. Spelling said in an April 7 speech here to an audience that included state schools chiefs and representatives of national education groups. The department also will soon propose new rules for every state that would make it easier to assess students with disabilities, she added.

“It is the results that truly matter, not the bureaucratic way that you get there,” Ms. Spellings said in an auditorium at George Washington’s Mount Vernon estate. “That’s just common sense, sometimes lost in the halls of the government.”

In her most noteworthy policy speech since taking office in January, the secretary outlined how she would give states new flexibility to implement the 3-year-old law.

While Ms. Spellings said that she doesn’t have the authority or the desire to waive certain tenets of the law, she is willing to address concerns she’s heard from state and local officials.

“It’s very clear that there is a new attitude about working together around results,” G. Thomas Houlihan, the executive director of the Washington-based Council of Chief State School Officers, said after the speech.

But others were skeptical.

While Ms. Spellings addressed states’ heightened desire for more freedom from the law’s broad mandates, they said, the federal department will still be the final arbiter of what states have to do to earn the new flexibility.

“It sounds like a good step in the right direction,” Scott Young, a senior policy analyst for the National Conference of State Legislatures, said of the proposal outlined by the Education Department. “But all the discretion … is in the hands of the secretary of education.”

The process would be fairer, said Mr. Young, whose Denver-based group has been critical of the law, if an independent panel of legislators, parents, and educators reviewed and decided on states’ requests.

New Approaches

Secretary Spellings outlined three ways the department will be working to make the No Child Left Behind law, a revision the Elementary and Secondary Education Act, easier to implement.

First, the department will soon draft rules to let states to set separate standards for students in special education who have “persistent academic disabilities.”

Second, the department will convene a panel of experts to consider ways of allowing states to incorporate a so-called growth model into their accountability systems. Such models give schools and districts credit for increasing student achievement, even if they wouldn’t reach the exact levels set for all schools and districts by their states under the federal law.

Finally, Ms. Spellings said the department would work with states that make the case for waivers of certain rules under the law. She emphasized that states would have to prove that they had complied with the tenets of the law and show that student achievement was increasing. They could do that by showing that test scores were rising, that graduation rates were increasing, and that achievement gaps between minority and white students were closing.

The federal department will tell state officials what they need to do to get the waivers by the end of the month, Raymond J. Simon, the agency’s assistant secretary for elementary and secondary education, told reporters after Ms. Spellings’ speech.

Certain pieces of the law are not negotiable, Ms. Spelling said. For example, the department will still require all states to test students in reading and mathematics annually in grades 3-8 and once in high school. It also will continue to demand that schools and districts report test scores for the demographic and racial categories outlined in the law.

The No Child Left Behind law, the centerpiece of President Bush’s K-12 agenda, has as a main goal of raising student achievement by holding states, districts, and schools accountable for academic results. If schools fail to make adequate yearly progress toward goals set by the state, they must offer school choice or services such as tutoring. If a school continues to fall short of those goals, the state could take it over and replace its staff.

Special Education Testing

The Education Department’s first step in making the K-12 law easier to carry out will be to issue new rules on the testing of special education students.

Ms. Spellings said the department would create a new category for testing students with “persistent academic disabilities.”

Under rules that will be formally proposed before this summer, states would be allowed to give such students separate assessments based on standards set to match their abilities.

Students who scored at a proficient level on those tests could then be counted as proficient when considering whether schools and districts were making adequate yearly progress toward 100 percent proficiency, which they must meet by 2014. Under the anticipated rule, 2 percent of a school’s or district’s enrollment could be tested against the modified standard and still be considered proficient for accountability purposes.

An existing rule sets a similar, 1 percent cap for students with severe cognitive disabilities who take alternative tests that are below grade level but measure the progress of their learning.

The additional rule is needed, Mr. Houlihan of the state chiefs’ council said after the speech, because the 1 percent rule is “totally unworkable.”

Although the new rule would require states to devise new standards and tests for those academically challenged students, state officials said the work would be worth doing.

Disability-rights advocates, however, see the anticipated new rule as a retreat from policies under the law that have forced schools to improve instruction for special education students.

“We’re talking about students who have been miseducated,” said Kathleen B. Boundy, the co-director of the Center of Law and Education, an national advocacy group with offices in Boston and Washington. “For the first time, youngsters with disabilities are being taught to grade-level standards.”

Quelling Controversy?

The secretary’s Mount Vernon presentation to about 150 people—including 15 state schools chiefs and 10 deputy chiefs—came two days after Connecticut Attorney General Richard Blumenthal announced his “imminent” plans to file a lawsuit against the federal Education Department that would challenge the testing requirements of the No Child Left Behind Act.

At the event, Ms. Spellings read from her prepared remarks and did not take questions from reporters. However, state officials were able to question her in a private session.

Influential federal lawmakers said the changes would help assuage critics’ complaints that the law is unworkable and needs to be overhauled legislatively.

“Flexibility—applied consistently and fairly among the states—will quell a good deal of the controversy that surrounds the law and bring huge benefits to America’s schools and students,” Reps. John Boehner, R-Ohio, and George M. Miller, D-Calif., said in a joint statement. Mr. Boehner is the chairman of the House Education and the Workforce Committee, and Mr. Miller is the senior Democrat on the panel.

Senior Editor Caroline Hendrie and Staff Writer Christina A. Samuels contributed to this report.

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