Draft ESEA Regulations

K-12 Testing

Draft regulations on state assessments issued by the U.S. Department of Education confirm that states will be allowed to use systems that include both state and local assessments to meet the requirements of the new Elementary and Secondary Education Act (ESEA; see Examiner, Winter 2001-02). The regulations also will allow states to use commercial norm-referenced tests, provided that additional questions are added to adequately assess student progress on state standards. Regulations implementing the accountability provisions in the law will be written later this spring.

The Department first issued draft regulations, then began a process of “negotiated rule-making” to review and revise the language. Statements from the Department indicate that the negotiation group has approved the provisions for state flexibility. Meanwhile, the Center for Law and Education (CLE) has filed a lawsuit maintaining that the rule-making committee is illegally constituted as it does not include the proportion of parents that the law requires. CLE director Paul Weckstein argued that if more parents had been on the committee, it probably would not have approved any use of norm-referenced tests.

The draft regulations presented to the rule-making committee largely repeat language from the law. They require every state system of academic assessments to:

• “Provide coherent information about student attainment of [state] standards”;
• be valid and reliable and consistent with national assessment standards;
• be accessible to and valid for students with disabilities and those with limited English proficiency;
• “Involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding of challenging content”;
• “Objectively measure academic achievement, knowledge, and skills,” while allowing for essays and extended-response items; and
• “Fully address the depth and breadth of the State’s academic content standards.”

Though the law requires that the assessments provide useful diagnostic information about individual students, a purpose often touted by ESEA proponents, that requirement is not specified in the regulations, indicating that the Department will not insist that state exams be diagnostically useful.

It is not feasible that any state test will meet all these requirements (see the fact sheet, “Limits of Standardized Tests”). Studies of the exams praised by testing proponents as being the most comprehensive have shown they fail to “fully address” their state’s standards and only assess knowledge and skills that can be assessed in limited time. Norm-referenced tests, constructed to sort students out, are even less likely to meet the requirements – if the government actually chooses to enforce them. States which utilize local, classroom-based assessments probably will best be able to comply with the regulations.

Proponents of mixed systems, such as those being developed in Nebraska and Maine (see story, p. 16) had wondered whether the Department would allow such systems, and if so, what requirements, particularly for reliability, it would impose on them. The draft regulations call only for a “rational and coherent design” that can meet the same requirements as any other state assessment system. Thus, the assessments must ensure consistency and fairness in determining each student’s progress in relation to state standards.

Nebraska Education Commissioner Doug Christensen, a strong advocate of the “mixed” approach, indicated that he was comfortable with the requirements and that Nebraska could meet them if they were reasonably applied. It remains to be seen how the Department will actually evaluate state systems that include local assessments. Department spokespeople said such states would have a heavy burden to prove their assessments met the requirements.

ESEA also calls for the production of itemized score analyses, suggesting that states could be required to release actual test items. However, the regulations explicitly say states do not have to do so – rendering many item analyses useless for diagnostic purposes.
• The draft rules are published in the Federal Register and can be found via http://www.ed.gov/nclb/landing.jhtml?src=mr
• For more on ESEA