New reports, similar conclusions: NCLB needs work.

Administrators and teacher organizations have been complaining for three years now. But this time, two studies have come to similar conclusions: No Child Left Behind needs some tweaking when it comes to state accountability plans.

States Test Limits of Federal AYP Flexibility, released last fall by the Center on Education Policy, and The Unraveling of No Child Left Behind: How Negotiated Changes Transform the Law, released in February by The Civil Rights Project at Harvard University, explain that individual states are changing their accountability plans to essentially get more flexibility in meeting adequate yearly progress.

The problem, the reports say, is that there is little uniformity of what states can or cannot do under the law.

Texas, for example, had been testing 9 percent of its students over a year ago using alternate assessments and counting those scores toward AYP, while other states were only allowed up to 3 percent, the CEP report claims. Texas was threatened with fines for exceeding the limits, but the state later agreed to pay a fine related to the late reporting of scores. The U.S. Department of Education settled on a 5 percent cap, still higher than what other states are allowed, the CEP report claims.

As for Florida, the Civil Rights Project report claims, the education department approved last April an amendment that allows Florida to add a new definition of AYP. "Provisional AYP" was given to those schools that received an "A" or "B" under the state accountability plan but did not make AYP under NCLB. Florida was the first state and only state as of February with a "provisional AYP" rating, the report claims.

"So it is about what you can get in private negotiations between states and the Department of Education," says Gail Sunderman, the Civil Rights Project study's lead author. "There is no neutral, clear process."

"This is the quintessential backroom deal," adds Jack Jennings, president and CEO of CER "Flexibility was needed because it [the law] was considered too rigid. But with all the flexibility, there are no uniform criteria. It's on a case-by-case basis."

And he adds that state officials must talk to each other to see what the others are getting to get more flexibility, and thus, the changes are watering down the law's intent.

Susan Aspey of the Education Department calls Jennings' comment "absurd," explaining that the department has issued clear guidelines regarding the policies. "Of course the states talk to each other--it's common sense and good policy practice to learn from the innovations and policy practices that your peers are undertaking," she says.

What works in one state may not be appropriate in another, Aspey explains. Each state has different testing systems, policies and populations of students. "And we consider each state's unique qualities when deciding whether to approve changes to their accountability plans," she adds. "All of the state's plans and what changes we've approved are posted on our Web site."

The CEP report ends with saying the Education Department should open all state requests for changes to other states and the public, and then when it denies changes or approves changes explain the reasons and give state officials or the public a chance to comment.

www.ctredpol.org www.civilrightsproject.harvard.edu

Change is Good

Some popular changes in state AYP policies approved by the Department of Education:

* Confidence intervals, which allow for fluctuations in test scores and bolsters a school's percentage of student scoring at proficient levels.

* Performance indices, which give schools "partial credit" for student performance below the proficient level.

* Retesting, which allows students to retake a different version of the same test and use the students' best scores to count toward AYP.

* Increased minimum subgroup sizes, which means that in some schools, subgroups do not get counted for AYP.