Open season: for two years, No Child Left Behind has ruled K-12 education. Now, behind a phalanx of criticism from superintendents, politicians and even some members of the public, the future of the law is in doubt.

Forget for a moment several parts of No Child Left Behind. Forget whether you think the federal government has the right to hold states accountable for how they educate students. Forget whether you think a series of tests is the best way to make sure the nation's children are learning what they need to know.

Take a deep breath and forget the way a law created by politicians aims to tell education officials how to do their jobs. And most of all forget whether you think the federal government has provided enough funding to carry out its mandate.

Now, consider possibly the most interesting part of the law: Will it survive?

NCLB started off with a non-partisan bang, one of President Bush's first major pieces of legislation when he took office in January 2001. As recently as a year ago, there seemed to be no doubt that while many railed about No Child, criticized the funding, and picked at the myriad regulations, the law was the law and would be for the foreseeable future, especially if the president won re-election.

Now, the only thing apparent about NCLB is that the drumbeat of criticism is increasing, seemingly every day. Rants are coming from frustrated superintendents, aspiring presidential candidates, school districts that are refusing federal funding to avoid the law, and entire state legislative bodies.

Throw in Secretary of Education Rod Paige's remark in February that the largest teacher's union, the 2.7 million-member National Education Association, is a "terrorist organization." Factor in the results of the recent Public Agenda survey, where one-third of the nation's superintendents said they thought the law wouldn't work. And consider that while education still ranks high among voter concerns, no one--NCLB pro or con--actually thinks the public understands this law.

Is this all hyperbole? Consider that education scholar John Goodlad, the opening speaker at this year's AASA conference, said the major question about education today wasn't whether No Child would be discarded, but what should be done when it is eliminated.

Need more proof? AASA Policy Analyst Terri Duggan Schwartzbeck's research shows nearly half the state plans accepted by the DOE are back-loaded. This means 22 states propose to make the majority of their progress in getting all students to be proficient starting in 2009. That, of course, is the year President George W. Bush will be out of office, even if he wins in November. When she made this point recently in front of an audience of about 35 superintendents, she got a spontaneous round of applause.

And finally, Virginia's Montgomery County Public School Superintendent Frederick Morton says his district has talked with three law firms to examine whether to sue the federal government Other superintendents have floated the idea of a class-action suit, joined by thousands of other school districts. A potential partner for any suit is the NEA, and its considerable resources.

Bipartisan Origins

To deconstruct this law, let's examine its origins. Paige says No Child is a less radical change than the ESEA overhaul that occurred under President Clinton. While that 1994 rewrite did put in many of the standards still with us today, it lacked the punch of No Child. Basically, without the threat of taking away federal funds, of allowing students to transfer out of schools that "are in need of improvement," the Clinton law was nearly ignored by school officials. Those who didn't duck its directives, sought and usually got waivers that delayed work and consequences until it seemed like no one was keeping track.

"The 1994 revisions were more astounding in principle," says Lisa Graham Keegan, CEO of Education Leaders Council. "What changed was we realized unless we got serious about repercussions, nothing was going to happen."

Even NCLB critic Morton is quick to remind people that more Democrats voted for this law than Republicans. That group of Democrats includes presidential candidate John Kerry, although he has since criticized Bush's funding of the law. "I'll take the politics out of public education funding," Kerry has said on the campaign trail.

In an extensive interview with DISTRICT ADMINISTRATION, Paige defended the law, saying the plan from the beginning was to build bipartisan support.

"Our president understood that this was a national problem with a national interest, and therefore it required a bipartisan approach. Our president insisted we have bipartisan support I confess there were some elements of the law and some moments when I personally would've said, 'Let's just get the Republicans together and push it and stick it on to them,' like we did with the tax cuts."

What Stays

Regardless of what you may think about No Child, and regardless of whether it stays or is swept away, it has changed education in this country forever.

Some pieces of NCLB, such as its reliance on standards and its ability to force schools to examine achievement by subgroups of children, will remain part of K-12 education in this country no matter what happens in the future.

"The standards are not going to go away," Paige says. "Assessment against those standards are going to be here. That's the new world. We are not going backwards."

Although Nebraska Education Commissioner Dung Christensen criticizes much of NCLB, he praises its efforts to make sure that each subgroup is making progress. "Why weren't we paying attention to all children subgroups?" he said in a speech at the AASA conference.

And while Morton ponders suing the federal government, even he admits his district "could do more with its subgroups."

Lining Up the Critics

As criticism of the law grows, there are four main areas to consider when trying to weigh No Child's survival: the attitude of the superintendents who have to meet this law; the lack of give-and-take on what is a very detailed set of regulations; districts either rejecting or reshuffling Title I money to avoid NCLB sanctions; the various legal challenges being considered by school districts and state legislatures.

The Public Agenda survey released in November was the first large-scale effort to take the temperature of the nation's superintendents on NCLB, and the results weren't favorable. One in three superintendents said simply No Child Left Behind wouldn't work, while almost twice that number (64 percent) said it was a "major concern" that NCLB relied too much on standardized tests. Almost nine out of 10 called the law an unfunded mandate, six out of 10 thought it was an "intrusion" by the federal government, and 58 percent said the consequences and sanctions in the law are unfair.

The kicker may have been this: when asked which statement best described their views of NCLB's intent, four out of 10 superintendents were positive, agreeing that NCLB's "is an effort to improve the nation's public schools and is motivated by good intentions."

But 31 percent checked off the box that read, "NCLB is a disguised effort to attack and destroy public education." That means that nearly one in three not only disagree with the law, its policies and its intent, but feel it was created to put them out of business. Twenty-two percent of respondents said the law was "motivated solely by politics." (Seven percent said they weren't sure what their view of the law is.)

Paige's response? "I'm very disappointed. In the first place, I'm a member of that community. We superintendents are the natural leaders here. We cannot be perceived as fighting improvement and pushing back against the national need to move forward ..."

Speaking about superintendents who are against the law, he adds, "I do understand their point of view. You can have all these glorying goals, but the people who are getting fired every three years are the superintendents. So they understand this. They feel this personally. This, for them, is not philosophical."

Ignoring Dissension

Of the superintendents who don't agree with the law, many of them complain about how their criticisms are received by the federal Department of Education.

Christensen put it simply: "Opposing No Child virtually guarantees you won't get a seat at the table to fix it.... The dissenters have been marginalized."

Morton's reaction was even stronger. The DOE's answer to complaints is, "Which child are you going to leave behind," he says. "That's rhetorical BS."

"I would love to have a Secretary of Defense talk about our armed forces the way our Secretary of Education talks about our public schools."

Paige has been one of the main bashers of critics. He has compared NCLB opponents to people who opposed desegregation 50 years ago. In early January, he said, "I find it staggering that the very critics and organizations that fought so hard for civil rights could leave minority children behind."

At a December speech in Houston, he said, "Frankly, some people don't like change. Change is difficult precisely because too many people have a good thing going with the old system. Some people aren't as concerned about your children as about themselves."

The terrorist comment aside, the DOE has changed its tact recently, actively looking to listen to critics, and to make sure their officials help sell the idea of No Child to the public.

Right before the AASA conference in February, not only did the DOE agree to send a team of officials to take part in various sessions, but Paige sent a letter to every association member urging them to attend these sessions.

One attendee garnered a laugh when he told Ray Simon, the DOE's assistant secretary for Elementary and Secondary Education, "I don't know what to make of the new, kindler, gentler Department of Education."

Simon's response? "We're trying to be more open about what states are doing. We're promoting flexibility."

Indeed, in the same interview where he rafted against some of the law's critics, Paige took time to say: "We're not here just as a regulatory agency. We're here to help. We want to help. Our goal is student improvement. Our goal is not beating up people and withholding dollars. We want to reject the work of the people in the schools. ... At the same time, there's a delicate balance in staying consistent and in compliance with what the law says."

District Rebukes

While there is no shortage of criticism about NCLB, a handful of districts in two states--Connecticut and Vermont--have decided to avoid parts or all of the law.

Three Vermont districts shifted Title I money away from some schools to avoid NCLB penalties. Specifically, the decision saved schools that would have been listed as "in need of improvement." Under No Child, these schools would have been required to set aside 20 percent of their Title I funds for supplemental services.

Three Connecticut districts went even further, with schools rejecting Title I money to avoid NCLB's regulations.

Cheshire's 5,100-student district turned away about $80,000 rather than have to meet the law's myriad reporting requirements. The money is a small fraction of the district's $50 million budget, but none of the town's schools would have been labeled as "in need of improvement" this year.

Somers (Conn.) High School had a problem that is popping up around the country--not enough students taking the required tests. Every student at the school who took the test was deemed "proficient" in reading, and 99 percent of students got the same label in math. The problem was that instead of having 95 percent of students take the test, Somers had 94.3 percent. So it became a school "in need of improvement."

Nationwide, about one district in four had at least one school receive the "in need of improvement" designation. By far the largest reason for this label was that 95 percent of a school's students weren't tested.

Not many can afford to do what Somers did, reject the $43,000 of Title I funding to avoid the "in need of improvement tag.

This example points out two major problems educators mention about No Child. One is that with so many categories to meet, missing just one can put you on the same list as a school that has missed every benchmark. The second is the harsh penalties that kick in starting the second year a school is deemed "in need of improvement." If 95 percent of a school's students fail to take the test for two years, that school will automatically have to offer kids a choice to transfer. The problem with this, is that even if another school in the district is better, the influx of students could lead to overcrowding, and the overcrowding could make the "better" school worse than the one students am leaving.

Lawsuits on the Horizon

While Connecticut and Vermont districts exercise their right to reject Title I funds, more serious trouble may be on the horizon for NCLB.

Fifteen state legislatures have requested additional funding or waivers for part of No Child. Three states--New Mexico, Arizona and Wyoming--are considering bills that would allow the state to opt-out of NCLB's regulation. Two school districts are weighing suing the federal government over the law.

The Utah House of Representatives, a Republican-dominated body, voted 64-8 in February not to comply with any provisions of the law that aren't fully financed by the DOE. The Virginia House of Delegates, shaking off a direct appeal from Paige, voted 98-1 to exempt their state from No Child. The delegates called NCLB "the most sweeping federal intrusion into state and local control of education in the history of the United States."

Ever since the law passed, its funding has been debated. At least 10 states have called for or finished reports on the cost of No Child. The results and methods range widely.

Paige counters the criticism by saying Title I funding has increased 41 percent since Bush took office. "That is a substantial increase in funding."

While spending for Title I has gone up, it has never matched the authorization level of the law and the gap is growing wider.

In the fiscal year 2003, Title I funding was at slightly more than $10 billion, while the law's authorization said it could climb to slightly more than $15 billion. In fiscal year 2004, funding went up to about $12 billion, but the authorization climbed to $18 billion. In fiscal year 2005, the president proposed increasing Title I funds again, this lime to about $13 billion. While Congress hasn't authorized the government's budget yet, the NCLB authorization for this year rises to $20 billion.

"We do need money, we need increased funding, but the level of funding that this nation has committed to education is substantial and it is also adequate, should I say sufficient, to achieve the tenets and requirements of the NCLB act," Paige says.

"The nation last year spent, federal, state and local, $470 billion in education. That's more than what's spent in national defense.... Now, is it unreasonable to ask, after this kind of outlay by our nation, for a third-grade child to be able to read on a third-grade level? Is this enough money to achieve that?"

The answer to this simple question may be decided in court. Morton says if his district does decide to file suit, he would likely target the lack of funding for the new initiatives. The irony, he adds, is that he doesn't think the funding is the law's main problem, just the best way to attack No Child in court.

Mackiel says his district is suing his state over funding, and depending on that outcome, the district may consider suing the federal government.

Public Perception

So where does this back-and-forth leave No Child? Firmly in the public's hands. According to an NEA poll, citizens remain divided over the law. Thirty-seven percent of respondents in a January 2004 poll said No Child was a positive law, while 21 percent said it was negative. The largest segment, 42 percent, said either they didn't know about NCLB or that it was too soon to judge.

According to a series of polls the AASA has conducted, education has consistently ranked as the fifth-most important problem facing the country, residents say. The economy has been the top choice through all four polls, which were taken from January 2003 to October 2003. The next three topics are healthcare, terrorism and the war in Iraq.

On this topic, Paige agrees. "People don't understand NCLB. It's one of the most burning problems [with the law].... If there's anything that we can be disappointed in in the law, it is that we didn't quite appreciate how this positive law and this positive intent to help all children learn can be perceived by some as a negative situation."

He blamed a big part of the public's misperception of the term "failing schools." Paige said schools not meeting one of the requirements are technically "in need of improvement," not failing, but the public perception, helped along by the press, the secretary said, is that these schools have failed.

In the coming year, the public--through its reaction to schools deemed "in need of improvement" and in the presidential election--may have the final say in whether this landmark law itself posses or fails.

Who's Failing
to Make AYP?
Percentage of districts with at least
one school identified as "in need of
improvement" for two consecutive years

                                   2002-03   2003-04

Total (all districts)                15%       21%

District Type
Urban                                40%       50%
Suburban                             15%       23%
Rural                                12%       17%

District Size

Very large
(more than 37,441 students)          67%       86%
Large
(between 10,449-37,440 students)     46%       56%
Medium
(between 3,504-10,448 students)      20%       16%
Small
(200-3,403 students)                 10%       17%

Source: Center for Education Policy, From the Capitol to the Classroom,
2004.

Title I Funding

                      FY '03   FY '04   FY '05

President proposed     11.3     12.4     13.3
Congress Enacted       11.7     12.3
Authorization Level    16       18.5     20.5

Source: AASA

Note: Table made from bar graph.

Speaking Their Mind
Here's what superintendent have to say about NCLB

                             Large District    Small District
                             superintendents   superitendents   Total

NCLB probably won't work           22               41           33

Higher standards will be           43               28           38
ultimate impact of NCLB in
their state

It's a major concern that          56               77           64
NCLB relies too much on
standardized testing

Source: Public Agenda, 2003

Note: Table made from bar graph.