A shortening list of failing schools

There's still plenty of disgruntlement with the law, however, which requires schools to analyze student achievement each year among several different subgroups, such as race, income, and special education. It penalizes schools in which even one subgroup fails to meet a targeted proficiency level more than two years in a row. Those targets keep rising, toward the ultimate goal of having all students proficient by the year 2014. Many educators complain the law is unfair and too rigid, ignoring the realities of education in different settings.

"No Child Left Behind doesn't take into account the time it takes for children to learn the English language," says Foch Pensis, superintendent of the Coachella Valley United School District in Palm Springs, Calif., which is considering suing the government over the law's "English language learner" (ELL) requirements.

In Mr. Pensis's district, 80 percent of the students fall in the ELL category, meaning they have to demonstrate a certain proficiency with English; 90 percent are Hispanic. A quarter of his students don't speak English at all. "Once they learn English, they're doing very well," he says. "But that 25 percent pulls you down mathematically, so it's impossible to reach that goal."

Just three of the 19 schools in Pensis's district met their yearly progress goals this year. Now, he's working with legislators to see if they can get a regulatory change from the federal government that preclude the need for a lawsuit.

Boston, Chicago, and several other urban school districts were caught off-guard by another component of NCLB. For the first time this year, the law placed entire districts, not just schools, on the watch list. Besides, the federal government said any district that made the watch list had to hire private tutors, not rely on their own, to improve performance.

Chicago has said the prohibition means far fewer children will get help. The superintendent vows to keep supplying their own tutors. Boston - which was placed on the watch list because it missed its attendance goal by 0.2 percent - is also considering defying Washington.

Moreover, Jack Jennings, director of the Center for Education Policy, notes that a few school districts have landed on the watch list - even though they don't have a single failing school.

California has been particularly critical of NCLB. The state has its own accountability system, a model that tracks student achievement over time instead of school performance. California, along with 16 other states, has asked to use this system in place of NCLB. More than 300 schools showing significant improvement under its model have been labeled failing under NCLB, according to State Superintendent Jack O'Connell. "What concerns me is that those schools are going to have to change programs they know are working," he says.

The state has estimated that 67 percent of its schools would fail to meet federally mandated targets next year. "What kind of accountability system would you have when over half the schools are" failing? asks Mr. O'Connel. Like nearly all NCLB critics, he insists his complaints aren't with tough standards or the goals of the law - just the implementation. With our model, he says, "we always give schools a shot at success."

Not everyone agrees. The Bush administration has labeled much NCLB criticism as "the soft bigotry of low expectations." California's system may sound better, but because it demands the same level of academic improvement for all subgroups, rather than accelerated improvement for poorer achievers, "it institutionalizes achievement gaps and allows them to grow wider," says the Education Trust's Mr. Wiener.

For its part, the Department of Education acknowledges that changes may still need to be made to the law, but questions why anyone would anticipate failure in advance.

"I know there are potentials out there for large numbers [of schools on the watch list], and perhaps it will happen. But I've been more than impressed with what I've seen," says Eugene Hickok, undersecretary of Education. "I would not want to underestimate the ability of men and women to really make things happen."

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