Loopholes create big concerns.

A recent report showing nearly two million students' test scores--including many minority students' scores--are not being counted in NCLB provisions has some education advocates saying schools are exploiting a loophole to escape penalties.

According to previous published reports, some states are not reporting the scores of minority, special education, ESL and economically disadvantaged students if they comprise subgroups in the schools that are so small that their numbers are statistically insignificant. That number varies from state to state with California exempting subgroups of less than 100, Texas exempting students in subgroups less than 50 and Maryland exempting only subgroups under 5. The states have gotten approval for the schools' exemptions from the federal government.

"It doesn't make any sense to have different states setting different standards," says Michael Petrilli, vice president for policy at Thomas B. Fordham Foundation.

On top of the students left out, only about a fourth of the nation's schools have reportedly been making AYP. "States are required every year to raise their standards. As that bar is going up, a lot of people expected that 80 percent of schools would be failing to make AYP, but that hasn't happened," Petrilli adds. "You could read that as students are learning so much more, but the honest reason is states are finding ways through loopholes to let schools off the hook."

Education Secretary Margaret Spellings has said that the U.S. Department of Education must do more to make sure such students are not excluded. She did not offer details, but said it would come up during the law's reauthorization next year.

Daria Hall, senior policy analyst for Education Trust, says the federal government should have clearer standards for subgroup exemptions. "Many states have set these 'N' sizes so large that it's no longer about validity or reliability. It's about political considerations and finding ways to insure more schools make AYP," says Hall. "These huge sizes that allow big groups of students to go uncounted should not be allowed."

Federal and state officials say while the subgroup scores aren't counted, the students' scores are not ignored. "There are standards and performance safeguards built in that can evaluate those small groups," says DeEtta Culbertson, Texas Education Agency spokeswoman.