Feds Tinker with NCLB Regulations to Relieve Pressure

K-12 Testing

Revised U.S. Department of Education regulations for implementing the “No Child Left Behind” law will allow states to report fewer failing schools for the time being. Urban schools serving diverse, low-income student bodies will remain very likely to fail, while a similar fate for more homogeneous suburban and rural schools will be postponed. However, the changes fail to address the fundamental reasons for intense opposition to the law and have further angered advocates for disabled and limited English proficient students (see “Failing Our Children stories on p.1 & p.21).


In reaction to intense bipartisan political pressure, federal education officials made slight adjustments to give states more latitude in interpreting NCLB mandates. For example, states have been told schools and districts will be labeled “In Need of Improvement” only if they fail to show gains in the same subjects for two years in a row, rather than if they miss their targets in one subject one year and a different subject the next.


Other regulatory changes include:
• Schools may now exempt students with grave injuries or medical conditions from the standardized exams used to rank schools rather than being automatically penalized if less than 95 percent of a subgroup participates in testing.
• Schools will be permitted to average the share of students who take the exams over three years, rather than rely on a single year, to achieve the 95 percent testing minimum, officials said.
• Schools need not give limited English proficient children their state’s regular reading test if such students have been enrolled in a U.S. school for less than a year. The department will permit states to count students who have become proficient in English within the past two years in their calculations of adequate yearly progress for English-language learners. Still, most students in the LEP category are by definition not proficient in reading and those who become proficient leave the category within two years. As a result, schools or districts with a countable subgroup of LEP students are guaranteed not to make “adequate yearly progress” (AYP).
• States and districts can devise alternate assessments pegged to other than a grade-level standard and use them to test students with special needs who cannot take the grade-level tests even with accommodations. However, a maximum of one percent of students in the grade levels tested could take tests based on alternative achievement standards and have their scores counted as “proficient” or “advanced” for meeting the federal “Adequate Yearly Progress” (AYP) mandate.


Edward J. McElroy of the American Federation of Teachers said the moves were “a hopeful sign” but inadequate to the task of remedying the law’s flaws. He also complained that the changes were not retroactive, as did Bruce Hunter of the American Association of School Administrators. Recently, Senator Edward M. Kennedy and Representative George Miller, the ranking Democrats on Congress’s education committees and original cosponsors of NCLB, have introduced legislation to allow changes to be applied retroactively to school accountability determinations from 2002-03.


States have begun to seek larger changes in their NCLB compliance agreements in response to several factors, including: the growing awareness of the very different agreements states have negotiated with the U.S. Department of Education; a recognition of the impossibility of the law’s underlying premise, that 100 percent of students will reach “proficiency” in a decade; and the admin-istration’s minor changes in regulations.


Some groups which had initially hoped that NCLB would increase accountability and improve education for vulnerable populations saw a danger that recent and proposed changes would enable schools and districts to leave disabled and limited-English proficient students out of the reckoning.


Maryland, for example, has asked for permission to count some students who qualify as both disabled and low-income only as low income. In effect, this would place these students’ test results into a larger pool and dilute their negative influence on average scores, making it less likely a school would fail to make AYP. Maryland has also proposed excluding groups making up less than 15 percent of the student population at the district and state levels, which would allow most districts not to count special needs or limited English proficient students.


New Jersey asked to allow schools with fewer than 35 special education students in a given grade to be exempted from AYP requirements, in contrast to its minimum of 20 for non-disabled students. Missouri, Nebraska, Ohio, Wisconsin, Puerto Rico and Washington, D.C. have also been granted permission to use a larger minimum cell size for disabled and limited English proficient students. Cell sizes vary widely across the states, from a low of five in Maryland to a high of 50 in several states, with some also building in “error ranges” that also eliminate some groups from AYP calculations.


James H. Wendorf, executive director of the National Center for Learning Disabilities, said: “We’re very concerned that students with disabilities are being hidden, pushed into corners and closets and not really brought into the assessment process. I’m afraid that these numbers games are another way for schools to say, `We just can’t educate students with disabilities.’ “Advocates for limited English-proficient students also expressed disappointment. Raul Gonzalez, legislative director for the National Council of La Raza, said he was initially hopeful about the law’s potential, but has grown “deeply disappointed.” However, his concerns were less with changes in cell sizes than in underfunding and the continued absence of high-quality assessments. “The administration’s really greased the wheels for this law to be a spectacular failure in the very minority communities that it’s supposed to benefit.”


Gonzalez also said, “You could call it a paradox, you could call it a broken promise, or you could call it a lie. The lack of investment [by the administration] tells us they never were serious about making the law work for kids.”