No Child Left Behind, or NCLB, is fast becoming a law that state education leaders wish they could leave behind. At least the part that says they have to keep raising the bar for reading and math performance – and then take action on the rapidly growing number of schools that miss the higher targets.
State superintendents in Montana, Idaho, and South Dakota have flat-out said they aren't going to raise the bar for schools' "adequate yearly progress" (AYP). They've sent letters to United States Secretary of Education Arne Duncan to that effect in the past several months.
The letter of the law has outlived the spirit, they argue, and they can't afford to follow all of it while also pursuing what they see as better ways to hold schools accountable.
"We could continue raising the bar and bringing more schools on that need support that we can't support ... or we could freeze it and continue supporting the schools that we currently serve," says Montana superintendent Denise Juneau.
Dozens more states see things the same way, but rather than openly defying the law, they’ve been hoping the US Department of Education will grant waivers from various aspects of it. On Monday, the Obama administration announced that it will indeed be granting waivers this fall – provided states sign on to certain reforms.
Following the law is not optional
Groups that support NCLB's focus on closing achievement gaps for poor and minority students say that following the law isn't optional.
"It's the law.... When you say, 'We don't want to do this,' then you shouldn't take the [federal] money either," says Amy Wilkins, a vice president at the Education Trust in Washington, which pushes for the closure of achievement gaps.
One of the biggest concerns of states is that NCLB requires 100 percent proficiency in reading and math by 2014, which many education officials say is impractical, especially since there will always be students arriving who are just learning English.
But states have backed themselves into a corner, Ms. Wilkins says. "For many years, [a lot of states] had very, very small goals, hoping that NCLB would go away before we got to the deadline."
Waiting for Congress
NCLB, which took effect in 2002, was due for revision and reauthorization by Congress in 2007 – and states are still waiting.
One key reason this year for the holdup: US Rep. John Kline (R) of Minnesota, chairman of the House committee overseeing education, doesn't see eye to eye with his Senate counterparts or Secretary Duncan on the best way to revise NCLB.
His committee has approved several bills that address the law in a piecemeal approach and favor state and local flexibility in spending federal education money. Many Democrats say too much flexibility undermines the civil rights purpose of the law.
Despite a full-court press by Duncan this summer to get Congress to pass something before school starts again, it's looking increasingly likely that the legislation will be pushed to next year, or even after the 2012 elections.
Montana's line in the sand
As for Montana and NCLB, this is the third year in a row that the state has kept proficiency targets the same: If 68 percent of students test at grade level in math and 83 percent in reading, schools are doing fine.
Under those standards, 26 percent of Montana's schools have been identified as needing improvement. But if the bar has to be raised this year, as scheduled, to 84 percent in math and 92 percent in reading, nearly half the state's schools would need improvement, says Ms. Juneau, Montana's superintendent.
NCLB requires raising the AYP levels at least once every three years. The US Education Department told Montana officials this summer that they could lose some federal funds if they don't deliver a compliance plan by Aug. 15.
It's a dramatic showdown.
But if history is any guide, it probably won't result in any large-scale withholding of federal dollars, says Paul Manna, a professor of government and public policy at the College of William & Mary in Williamsburg, Va. Since the original version of the federal education law passed in 1965, he says, "it's always been true that the federal government needs the states to make the law work, so they've almost always been willing to change deadlines, give states flexibility, when push has come to shove."
In Montana, as of press time, it wasn't clear to education officials what the consequences could be for freezing state proficiency levels. Juneau told the Monitor in late July that she had had several conversations with federal officials, but was waiting to hear "exactly what those sanctions may be in order to make an informed decision."
She said she wouldn't risk money that goes directly to schools, but she's aware of past cases where the Feds have withheld about 25 percent of funds that go to state administrators. In Montana's case, that would amount to a little more than $100,000, which would be significant for maintaining state staffing.
Fixes to NCLB sought
State superintendents, Duncan, and groups like Education Trust all agree that the law needs fixing. Duncan himself has projected that by next year, 82 percent of US schools could be deemed failing under NCLB.
Duncan and many state officials also agree that one fix should be a move toward "growth models" for measuring student progress, meaning that schools would be expected to help students gain ground academically from whatever level they started at, high or low.
In fact, 44 states recently agreed to moving toward growth models and a set of other principles for new accountability systems through an initiative of the Council of Chief State School Officers.
But until NCLB is fixed, states are left "in a parallel universe, where we are being forced to try and reconcile an inefficient, outdated law with bold, innovative paths toward raising student achievement," wrote Idaho superintendent Tom Luna in a June 21 letter to Duncan.
Idaho, too, is freezing its proficiency targets – at 85 percent for reading and 83 percent for math – rather than proceed with a scheduled raise to 90.4 percent for reading and 88.7 percent for math.
The state is already heading toward a growth model. "The problem with doing both [the growth model and the raising of the AYP bar] at the same time is that we have very limited resources," Idaho Department of Education spokeswoman Melissa McGrath says.
Idaho has frozen its targets for only two years in a row, so technically it's not out of compliance.
With the administration’s waiver announcement Monday, all these states may get relief from the NCLB requirements – provided that they can show they are maintaining the spirit of accountability in the law and that they accept a reform package put forward by the administration.
Duncan says he won’t give details until September, but all signs point to the reforms being the same ones the administration has consistently emphasized: higher academic standards, teacher evaluation systems, better use of data, and plans for dealing with the worst-performing schools.
In announcing his plan, Duncan pointed to the sort of “perverse incentives” in the current law, in which a state like Tennessee is punished for raising its standards. When the state had extremely low standards, 91 percent of students tested as proficient in math, Duncan said, but when the state raised its standards to more accurately reflect where students should be, that dropped to 34 percent.
“The current law provides lots of penalties for that kind of courage,” Duncan said in a press briefing. “We want to remove those and reward those states that are telling the truth.”
However, states unwilling to adopt the reforms decreed by the administration will be left to comply with NCLB, he said – a stance that some take issue with.
Representative Kline has warned that Duncan may be going beyond his legal authority, and said in a statement that he “will be monitoring the secretary's actions closely to ensure they are consistent with the law and Congressional intent."
The National School Boards Association urged Duncan in July to offer waivers as a short-term solution, without imposing "a lengthy, time-consuming and complicated state application process that would mandate new reforms on local school districts," citing the financial challenges districts face.
If waivers require any kind of state legislative action, Montana couldn't qualify, Juneau says, because its Legislature doesn't meet again until 2013.
South Dakota, in addition to freezing its proficiency levels, is concerned about another NCLB requirement: reporting a uniform four-year high school graduation rate. This requirement is just now kicking in, and for many states, rates will be lower than those previously reported using other counting methods.
South Dakota Education Secretary Melody Schopp is in discussions with federal education officials about lowering its target graduation rate from 85 percent to 80 percent because of the new reporting formula. They have not approved that idea, US Education officials say, and have instead made suggestions for how the state could make the transition without lowering its goal.