Status on Implementation of the No Child Left Behind Act (NCLB)

Background

The No Child Left Behind (NCLB) Act was passed by Congress with bipartisan support at the end of 2001, and it was signed into law by President Bush in January of 2002.  The overall goal of this law is simple: to ensure that all students – 100% – achieve at grade level by 2014.  One goal of this piece of legislation was to make school systems look at not only how its students were doing as a whole, but also at how particular groups of students (i.e., low-income, minority, students with disabilities and students with limited English language proficiency) were achieving. 

Between now and 2014, states, districts and schools must take a series of specific steps toward meeting the goal of having all students achieve at “grade level”.  Among the requirements imposed by NCLB are the following:

• By the end of the 2005-06 school year, all students in grades 3-8 will be assessed annually in reading and math using state-approved tests; students must be tested once during grades 10-12 in these same subjects.
  
  
• States must certify that all teachers of core academic subjects are highly qualified by the end of the 2005-2006 school year, using state-defined criteria.
  
  
• States must assess students in science once during grades 3-5, 6-9 and 10-12 by the end of the 2007-2008 school year, using state-designed tests.
  
  
• Provide public school choice and supplemental educational services to students in schools that have been unable to meet Adequate Yearly Progress (AYP) for two consecutive years.

Current Status

According to the U.S. Department of Education, states have made significant progress in implementing NCLB.  On June 10, 2003, President Bush announced that all 50 states, as well as Puerto Rico and the District of Columbia, had successfully submitted “accountability plans” to the U.S. Department of Education, detailing their plans for complying with NCLB.  The plans describe the various ways that each state will meet NCLB requirements.

While many states have submitted their required plans, many critics of NCLB argue that implementation at the state level is certainly not going well and many barriers remain.  

Most of the criticism (from Democrats as well as Republicans) has focused on the following issues:

• lack of funding;
  
  
• lack of guidance and technical assistance from the U.S. Department of Education; and 
  
  
• lack of flexibility for states.

Lack of Funding
Much of the criticism levied at NCLB, which has been greatly publicized and picked-up by the mainstream media, focuses on whether this law has been “fully funded” by the President.  Specifically, Democrats charge that since NCLB was enacted, schools have been shortchanged by $27 billion, and President Bush’s FY 2005 budget falls short of full funding by $9.4 billion.  Furthermore, these shortfalls have been complicated by the large budget deficits faced  by many states over the past several years due to the struggling economy. 

In addition, over the past several months, the NCLB law has made front-page news across the country as it has come under fire in a variety of states.  Viewed by many state legislators and school administrators as an intrusive federal mandate without adequate funding, NCLB has Republicans and Democrats alike sending a strong message to Washington: fund the reforms, or else.  In Utah, the Republican-majority House of Representatives voted to reject NCLB implementation “except where there is adequate federal funding.”  Similarly, Republican legislators in both Minnesota and Arizona have introduced “opt-out” legislation that essentially allows states to reject certain NCLB stipulations, and 10 other state legislatures have passed resolutions highly critical of the law.

Federal Guidance and Flexibility
More recently, critics have levied attacks on the lack of leadership provided by the Department of Education on implementing the law and the inadequate availability of technical assistance to states.  Add to this the public pressure that is building in response to over 24,000 schools failing to meet the “adequate yearly progress” requirement and reports of school districts, particularly in rural and urban areas, that are unable to meet the mandate for hiring only “highly qualified teachers.”  In response, Paige has announced since December four substantive changes to regulations that govern implementation of the NCLB law.  This includes new guidance on:  (1) assessing special education students; (2) assessing students with limited English proficiency; (3) participation rates in a state’s annual assessment; and 4) highly qualified teachers in rural school districts. 

Assessing Special Education Students
NCLB and the Individuals with Disabilities Education Act (IDEA) require that all students with disabilities participate in the state accountability and assessment system.  Accordingly, states are required to include the scores of students with disabilities when determining whether schools and local education agencies (LEAs) have met their AYP goals for the school year.  Most students with disabilities are able to participate in the regular assessment that all other students take with appropriate accommodations to receive an accurate measure toward the AYP goals.  The number of students who can receive these accommodations (i.e., increased time to take the test or the use of assistive technology) is not capped.  Other special education students might not be able to take the regular assessment, but can take an alternate assessment aligned to grade level standards, which is allowed to count for AYP purposes.

In December 2003, the U.S. Department of Education finalized a new regulation that would grant some additional flexibility to states, especially for students with the most significant cognitive disabilities.  Under this new guidance, states will be allowed to develop an alternate assessment aligned to an alternate achievement standard for 1% of all students, approximately 10% of students with disabilities nationwide.  It is this “alt alt” assessment that states will be able to use to assess those students with the most severe cognitive disabilities in order to calculate AYP.  States can also seek exemptions to the 1% cap if they have a larger population of students with the most significant cognitive disabilities. 

Assessing Students with Limited English Proficiency
NCLB requires limited English proficient (LEP) students to be tested in both reading/language arts and math.  NCLB allows these students to be tested in their native language for up to three years, after which time they should be tested in English.  LEP students must also be assessed in English language acquisition in order to ensure they are learning English.

In March, the U.S. Department of Education announced new regulations that changed the assessment requirements of LEP students.  While all LEP students are required to take and English language proficiency assessment and the math assessment, they are excused from taking the reading/language arts assessment during their first year of enrollment in U.S. schools.  Schools are also permitted to calculate AYP without including the results of these assessments.  Regardless, students would be counted as participants for AYP purposes thus helping to meet the 95% participation rate requirement.

In addition, since LEP students exit this classification or “subgroup” once they attain English language proficiency, it is difficult for states to demonstrate improvements on state assessments since proficient students leave while new LEP students enter annually.  The Department of Education responded by allowing states to include students who have attained English proficiency in the LEP subgroup for up to two years.  This is an option for states, not a requirement.  It allows for more flexibility for states to ensure AYP calculations credit schools and LEAs for improving English language proficiency from year to year.

Participation Rate of Students in Assessments
NCLB requires all students to participate in a state’s annual assessment.  At least 95% of a school’s students must actually take the assessments in order for that school to make AYP.  In early April, the U.S. Department of Education announced new flexibility for calculating the participation rate of students on standardized tests.  If a school now misses this mark, states may average participation rates for a  given school over two or three years.  For example, a school might find that its participation rate dropped to 94% for one year.  If, in the previous two years, the participation rates were 95% and 96%, it would still meet the federal mandate.  In addition, students who are unable to take the test during either the testing or make-up periods due to a significant medical emergency will not count against the school’s participation rates.

Highly Qualified Teachers In Rural School Districts
NCLB requires that all teachers of core academic subjects be highly qualified by the end of the 2005-2006, using state-set definitions.  Approximately one third – or almost 5,000 – of all school districts in the United States are considered rural, and teachers in these areas often teach more than one academic subject.  In order to assist states in meeting the “highly qualified” teacher requirement, the U.S. Department of Education announced last month new guidance that allows teachers in some small, rural districts who are highly qualified in at least one subject to have three years to become highly qualified in the additional subjects that they teach.  To qualify for this extension, these teachers must also be provided with professional development, intense supervision with ongoing support or structured mentoring to become highly qualified in additional subjects.

Also under NCLB, veteran teachers can demonstrate subject matter proficiency by passing a state-designed subject matter test, completing an academic major in each academic subject they teach or using the high, objective, uniform state standard of evaluation (HOUSSE).  Under the new guidelines, states have the authority to streamline HOUSSE procedures for teachers of multiple subjects so they can demonstrate competency in each subject they teach through one set of procedures.

Partisanship and NCLB
On top of the specific issues mentioned in this brief, the political rhetoric was further intensified far beyond the typical partisan debate when Paige called the National Education Association (NEA) a “terrorist organization” during a private meeting with a group of governors last February.  This  drew immediate criticism from Democrats as well as Republicans.  Paige later apologized for what he called “an inappropriate choice of words to describe the obstructionist scare tactics the NEA’s Washington lobbyists have employed against No Child Left Behind’s historic education reforms.”  Department officials said Paige’s initial comments were taken out of context.  

Following this unfortunate remark, key Democrats who worked with the President in 2001 to pass the NCLB Act met with the Secretary to share their concerns over implementation and enforcement measures.  In response, Paige issued a letter to Democratic members of the Senate Health, Education, Labor and Pensions (HELP) Committee and the House Education and the Workforce Committee detailing the progress made since NCLB was enacted.  This was then followed up by additional response documents issued separately by both the Republicans and Democrats on the Education and Workforce Committee detailing the progress they believe has been made since January 2002.

And lastly, 30 Democratic Members of the House Education and the Workforce Committee and the Senate HELP Committee recently wrote Paige asking that the new regulations issued since last December be used to recalculate last year’s AYP results for schools.  The rationale behind this simply being that it took two years for the Department of Education to issue these new regulations, even though schools have been struggling with implementation since 2002.  Many schools were likely designated as non-performing under NCLB because these regulations were not in place last year.  Paige has denied this request.  Democratic Members have written to urge him to reconsider this position.  

NCTE raised concerns and offered draft statutory language as Congress was reviewing the legislation in 2001. Our advice focused on broadening the definition of “scientifically-based research”, on reducing the requirement for high-stakes testing, and on providing more flexibility for local schools and educators to meet the requirements of the law.

Source: Washington Partners LLC, 1101 Vermont Avenue NW, Suite 400, Washington, DC 20005

April 20, 2004