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Education reform from the top down: the federal government early this year passed the most comprehensive education legislation in recent memory. But there are many questions and few answers about the ramifications for states.

Strong bipartisan approval and public praise greeted reauthorization of the federal Elementary and Secondary Education Act (ESEA), now known as the No child Left Behind Act (NCLB).

Less than a year after taking office, President George W. Bush signed his top domestic agenda item--comprehensive education reform, signifying a fundamental change in the federal government's role in the nation's K -12 education system. Republicans, who had long advocated a diminished role for the U.S. Department of Education, and Democrats, who had vowed to reject sanctions against poor performing schools, reversed their traditional positions and joined forces with the president.

It was a welcome relief to all since prior efforts to address these issues brought spectacular partisan failures that drove a wedge between Congress and the Clinton administration.

U.S. Senator Edward Kennedy, a Democrat, was the prime Senate sponsor and President Bush's new ally on education. With overwhelming congressional support and only 51 dissenting votes, (41 in the Republican House and 10 in the Democratic Senate) what could possibly concern state legislators about the law? The answer is ambiguous: It depends on your perspective.


The intent of the law is to hold schools, districts and states accountable for every student's performance and address the achievement gap between wealthy majority and poor minority kids. Built on the 1994 Improving America's Schools Act, which initiated a system of standards and testing for Title I students (poor and disadvantaged kids), this new act goes further.

The two aspects of the law most widely talked about are the accountability and testing requirements. Based on the Texas model of standards and annual testing, states will have to adopt rigorous academic standards and annually test all students in grades three through eight in reading and math by 2005-2006. Currently, all states have standards in mathematics and reading except Iowa, which has district-level standards. As of this spring, however, only 15 states met the new testing requirements.

States have to adopt science standards by 2005-2006. Fortunately, most already have them in place. The law also requires states to test all students in science once in grades three through five, six through nine and 10 through 12 by 2007-2008.

States and school districts must have distributed school report cards by the beginning of this school year. All states must participate in the National Assessment of Educational Progress fourth and eighth grade reading and math tests.


The act requires states to define adequate yearly progress or annual performance targets that ensure all students are proficient in 12 years. Student performance, analyzed and reported by socioeconomic and demographic groups, including economically disadvantaged students, major racial or ethnic groups, students with disabilities and English language learners, is expected to gradually improve until all groups are 100 percent proficient.

Failure of any student group or subgroup to progress incurs increasing penalties the longer a school or district fails to meet the goals. This includes allowing parents to enroll their children in better public schools if their present schools have two years of inadequate performance; portable Title I grants for families to purchase supplemental tutoring services for students attending schools that are considered failing for three years; and reorganization of the school, its curriculum and staff after four years.

And what about the sanctions for poor performing schools? Initial versions were rejected by congressional conferees because the yearly progress net had been cast too wide. Conferees reworked the scope of that "net" before final passage. In the new, lower threshold actual state estimates of the progress standard indicate 70 percent to 80 percent of schools will be classified as failing.

The law also takes on teaching quality. It mandates that all new teachers hired with Title I funds be highly qualified by the current school year and that all teachers in core academic subjects be highly qualified by 2005-2006. To comply, states must submit their definitions and gain approval from the U.S. Department of Education.


The new law emphasizes reading for primary kids through two initiatives--Reading First and Early Reading First, which pleases New Jersey Assemblyman Craig Stanley. "Early reading is the foundation for learning and if you don't have a strong foundation you have a much higher rate of failure later on," he says. Replacing the Reading Excellence Act, Reading First gives money to states and districts to improve instruction for kids in kindergarten through third grade. At least 80 percent of the money must go to districts with priority given to high poverty areas with a large percentage of students reading below grade level. States must show improvement in reading scores or risk their funding after three years.

Early Reading First is a small, federally administered competitive grant program and focuses on the pre-kindergarten years. Both require states to provide instruction grounded in scientifically based research.


The new federal education act is somewhat like the three blind men and the elephant, similar to a nail and could be a case of the tail wagging the dog.

The Elephant: Three blind men stumble upon an elephant. The first wraps his arms around the elephant's leg and proclaims it a tree. The second grabs the trunk and declares it a snake. The third holds onto the tail and is convinced it's a vine. All are honestly, convincingly and thoroughly incorrect--Indian fable

Student testing, higher expectations, options for children in poor performing schools: These provisions seem straightforward, obvious and tangible. But like the blind men, perspective and interpretation play a huge role in perception of the requirements of the new law.

Supporters see the federal jump-start of standards-based reforms as the only way to ensure that all students get a quality education.

"There's no excuse for an 18-year-old reading at a fourth grade level," says Ohio Senator Robert Gardner, a former inner city educator. "No Child Left Behind is a very positive step that puts the emphasis on reading and math early in a child's education to help remedy the achievement gap.

The new law also fits into New Jersey's plans. "We're somewhat ahead of the curve because we were ordered by the state supreme court to address the achievement gap," Stanley says. "No Child Left Behind hopefully will direct some additional resources to that effort."

Detractors say states have already developed standards, and the federal government shouldn't preempt the process or the results, especially without full funding. They've seen state reforms without federal mandates and without the resulting shift in the balance of powers those mandates create. "The standards and assessments that Idaho has in place already have a great deal of support, and now the federal government is saying we have to do it a specific way," says Idaho Representative Doug Jones. "This will set us back about a year because we're going to have to go back and change the way we do things to comply with NCLB."

New Hampshire Representative Neal Kurk is concerned that the law is an attempt by the federal government to take over a function traditionally held by the states. "With the best of intentions, Congress may be imposing a one-size-fits-all approach that will end up being harmful," he says.

There also appear to be significant unfunded mandates in the law. The obvious areas that will affect states fiscally are in the development and administration of tests, data reporting requirements and assistance to "failing" schools.

"On the surface," says Kansas Senator John Vratil, "the motives appear laudable, but the devil is in the details. NCLB imposes another series of unfunded mandates on states and school districts, which may greatly exceed the mandates of the IDEA [Individuals with Disabilities Education Act or special education]."

Jones agrees with the theory behind the act, but believes that practically speaking, many of the provisions don't work, especially in a rural state. "If a school is deemed in need of improvement and must offer the student an option of attending another school, there simply may not be a place to send the student within 50 miles," he says. "Open enrollment may work in Boise, but it certainly doesn't in Fairfield because there's nowhere else to go."

As people debate the merits of the act, an important question is whether the new law can accomplish what it intends. And, if it can, at what cost, not only in fiscal terms, but also in any toll it exacts on education reforms already begun in states.

Nevada Senator Ann O'Connell, who spent five years on her state's standards commission, is concerned that their work will be wasted. "1 have no problem with the concept," she says, "but we know how much time, money and effort we have expended without knowing whether our standards, testing and levels of proficiency will be accepted. I feel like we're playing a game without knowing the rules."

The Nail: When the only tool you have is a hammer, every problem starts to look like a nail--Japanese proverb

Contemporary school reform efforts at both the state and federal levels are based on the 1988 summit called by President George H.W. Bush and subsequently used by then-Arkansas Governor Bill Clinton as a stepping stone to the presidency. The summit publicized the value of academic content standards and assessments as a critical component of school improvement. States wholeheartedly embraced the concept and embarked on ambitious standards-based reforms.

The leap from encouraging the process to requiring states to develop standards and assessments and apply them to Title I students was made in the 1994 Improving America's Schools Act.

Many state officials howled at what they said was an unwelcome intrusion of the federal government into state education policy. The reach of that law's hammer was limited, however, by its primary focus on Title I students, specific prohibitions against national tests, a seven-year implementation schedule and reluctance on the part of the federal government to penalize states that failed to fully comply.

When No Child Left Behind was signed into law nearly eight years later, only 17 states were in compliance. In the 37-year history of federal education programs, according to a recent General Accounting Office report, the federal government has never held money back from a state for noncompliance.


With the precedent set in the 1994 act, the incremental next step in the reauthorization of federal education law was to expand the standards-driven testing required of disadvantaged students to all kids, including the 68 percent who never come close to a Title I dollar.

The federal government makes this leap by structuring the universal testing requirement (and other aspects of NCLB) as a "condition of grant." In other words, if a state accepts federal money, the federal government may require it to do just about anything as a condition of taking that money--even if the requirement is not directly related to the core purposes of the federal program. And yes, the United States Supreme Court has upheld this interpretation.


Many see testing as the best way to increase student achievement. It's relatively easy to do, available, quick and already part of existing federal law. So it's not surprising that the accountability and testing provisions could be considered the most important and demanding aspects of NCLB--and also the most preemptive of state authority.

These requirements, however, raise an important question. Does testing improve student performance? Some say that measuring student performance is like measuring student height--it tells you how tall a kid is without identifying how to make a kid taller or how short the kid was to begin with. By itself, academic testing may show us where a problem lies, but it doesn't offer a way to fix it.

Other challenges associated with testing include:

* Cost--States collectively spent $400 million to test students in 2001. Compliance costs are estimated at about $1 billion per year, and federal appropriations are $400 million. States will not only have their testing appropriations hijacked, but will also be expected to make up the shortfall.

* Comparison--States cannot be compared because each state establishes its own definition of proficiency.

* Contrariness--There may be perverse incentives to lower standards because of testing, performance requirements and federally mandated sanctions.

* Consequences for special education--There may be more referrals to special education to allow for accommodated testing.

Although the experts may disagree about the utility of testing, most agree that it can be a step toward accountability, particularly if combined with effective remediation. Proponents are the first to stand up and say that testing is the way to hold schools, districts and states accountable while ensuring that all students receive a good education.


Such sweeping legislation begs the question--what if a state doesn't comply? The quick answer is that a state would not receive federal Title I funding. Further, if a state doesn't comply with the accountability and assessment provisions, the secretary of education may withhold up to 25 percent of the administrative costs appropriated. Since, on average, about 40 percent of the administrative costs in states are paid in federal funds, this could have a significant effect on state fiscal policy. If an education agency loses 10 percent of its funding (25 percent of 40 percent) while its role is being expanded, legislatures should expect to see requests for the state to make up the difference in appropriations.

Dog's tail: Sometimes it's the case of the tail wagging the dog--American idiom

The top-down, prescriptive nature of federal education reforms has led to a long-standing characterization of federal education policy as the tail that wags the dog. For its 7 percent contribution to annual K-12 funding, federal law leverages enormous power over state education and fiscal policy. The new law, moving as it does into a traditionally local and state policy area greatly enhances the federal role.

And the balance of power within the state government may be in jeopardy. Imagine a playground merry-go-round with the players being the key state education policymakers--the legislature, governor, state board, local school boards and the state agency all in some unique form of equilibrium. No Child Left Behind may be the 600-pound gorilla that has just jumped on next to your state education agency, throwing all others aside.

"The more we move toward a centralized system, the more parents feel alienated and the less involved they become," says Senator O'Connell. By bestowing money and authority directly to the state education agencies, it leaves legislatures with a much less influential role in setting state education agendas.

Or to return to our idiom, the federal tail just had a shot of steroids and is about to thrash the dog from one corner of the policy arena to the other. Whether this change is for the good of struggling students is yet to be seen.


Legislators already are looking for ways to ensure that their states don't lose their Title I funds. New Mexico Representative Rick Miera is consulting with colleges and universities to find out what they need before the legislative session, specifically in terms of how they can be ready for an influx of teachers and paraprofessionals going back to school to become highly qualified.

"I've never been a fan of reinventing the wheel," says Ohio's Gardner, "so states should look at what other states are doing and how they are successfully complying with No Child Left Behind."

But Senator Vratil, an attorney in his day job, has a more ominous and longer term concern. He says the law now sets a federal-state standard for an adequate education and that could open the door to lawsuits in federal courts challenging school finance systems. "If so," he says, "'No Child' will be significant in ways that no one ever imagined."

School districts now must publicize which schools are not making
sufficient academic progress. U.S. Secretary of Education Rodney Paige
announced in July that students in more than 8,600 schools across the
country may choose to attend a better performing school in their
district if the school they currently attend has failed to meet state
academic standards for two years in a row. Michigan and California have
the most low-performing schools, with Arkansas and Wyoming both
reporting none. These totals are based on information provided to the
U.S. Department of Education by the states before NCLB was enacted.
Although this comparison may seem useful on the surface, each state sets
its own level of "proficiency" and determines the number of schools
failing to meet that goal. The numbers from state to state are not
comparable, but may provide some insight into how each interprets

State Failing Schools School Year

Alabama 57 2001-2002
Alaska 11 2000-2001
Arizona 344 1999-2000
Arkansas 0 2000-2001
California 1,009 2000-2001
Colorado 154 2001-2002
Connecticut 28 2000-2002
Delaware 20 2001-2002
District of Columbia 12 2000-2001
Florida 246 2000-2001
Georgia 625 2000-2001
Hawaii 85 2001-2002
Idaho 88 2001-2002
Illinois 435 2000-2001
Indiana 97 2000-2001
Iowa 26 2000-2001
Kansas 118 2000-2001
Kentucky 107 2000-2001
Louisiana 24 2000-2001
Maine 19 2000-2001
Maryland 118 2001-2002
Massachusetts 259 2000-2001
Michigan 1,513 2000-2001
Minnesota 79 2000-2001
Mississippi 122 2000-2001
Missouri 63 2002-2003
Montana 68 2000-2001
Nebraska 105 2000-2001
Nevada 19 2000-2001
New Hampshire 4 2000-2001
New Jersey 274 2000-2001
New Mexico 63 2000-2001
New York 529 2000-2001
North Carolina 17 2001-2002
North Dakota 20 2000-2001
Ohio 760 2000-2001
Oklahoma 33 2000-2001
Oregon 9 2001-2002
Pennsylvania 256 2000-2001
Puerto Rico 234 2001-2002
Rhode Island 34 2000-2001
South Carolina 31 2000-2001
South Dakota 13 2000-2001
Tennessee 132 2001-2002
Texas 121 2000-2001
Utah 22 2001-2002
Vermont 28 2001-2002
Virginia 35 2000-2001
Washington 60 2001-2002
West Virginia 13 2001-2002
Wisconsin 113 2001-2002
Wyoming 0 2000-2001

Source: U.S. Department of Education


The federal government has created some challenges for states by mandating that all new teachers hired with Title I funds be highly qualified by the current school year and all teachers in core academic subjects be highly qualified by 2005-2006.

To be considered highly qualified:

* All public school teachers must be fully licensed or certified by the state and may not have had any requirements waived on an emergency, temporary or provisional basis.

* New public elementary school teachers must have at least a bachelor's degree and pass a state test on subject knowledge and teaching skills in reading, writing, math and other areas of elementary school curriculum.

* New secondary school teachers must have at least a bachelor's degree and show competency in each of the academic subjects taught or complete an academic major or coursework equivalent to a major, a graduate degree or advanced certification.

* Public school teachers for all grades must have at least a bachelor's degree and meet the same requirements or demonstrate competency in all subjects taught. Competency is based on an objective state evaluation of the teacher's knowledge of the subject taught and can consider time spent teaching the subject.

"Nationally, 6 percent of teachers are teaching while being waived from certification or licensure requirements and are therefore not highly qualified according to new federal standards, but that ranges from virtually none in several states to as much as 16 percent in others," says Eric Hirsch, executive director of the Alliance for Quality Teaching in Denver, Colo. "In California and Louisiana, almost one-quarter of all teachers in high poverty districts are on waivers."

Helping so many teachers become qualified won't be easy. With shortages in areas such as foreign language and special education, states will face even greater challenges finding teachers to fill these classrooms.

New Mexico is facing just such a dilemma, but Representative Rick Miera is looking to the No Child Left Behind Act to improve the situation. "I see the act as a wake-up call for a few of the issues the Legislature has been trying to agree on and solve in education," he says. "One of those is putting highly qualified teachers in classrooms. This is the national call for states to accomplish it."

The law also gives states a chance to reexamine how they certify teachers. "The law creates an opportunity for states to create a true 'profession' for teachers by establishing a common definition of highly qualified for the first time," says Tim Dedman, a policy analyst with the National Education Association, "I haven't heard anyone complain that the standards for teachers are set too high, but the timelines and money given to reach the goals may not be reasonable."

Paraprofessionals, or teacher's aides, whose positions are already difficult to fill also must meet tough new standards. The law requires new paraprofessionals hired with Title I funds to meet new standards of quality this year, including attending college for two years, earning an associate's degree or passing a state test. "NCLB has really created a dilemma for states because it's asking people who make minimum wage to meet these new requirements," says Dedman. "It'll probably have a greater impact on paraprofessionals than any other group because there's a possibility that districts will seek an easy way out and simply not employ them anymore."

Every legislator should keep in mind the difficulty of raising hiring standards for both teachers and aides without also raising salaries. And there's probably not going to be a dedicated stream of federal dollars to do so.

Demaree Michelau and David Shreve are education specialists at NCSL.
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Author:Shreve, David
Publication:State Legislatures
Geographic Code:1USA
Date:Dec 1, 2002
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