Initial FairTest Analysis of ESEA

FairTest staff have studied the legislation ("No Child Left Behind Act") and consulted with additional sources to prepare the following analysis of the testing and accountability provisions. The Act is very detailed and long, and we apologize for any errors in this summary and analysis. We will amend this document to correct any errors brought to our attention. The Act itself is available in pdf from the Government Printing Office at
First, the nutshell version of our analysis of the likely consequences of the assessment requirements in the Act:
Major dangers:
1) States will read the legislation as requiring standardized tests in grades 3-8 and once in high school, implement such tests, and use them as the core of accountability - thereby driving curriculum and instruction with narrow tests, even to the point of reducing some schools to test preparation programs. Narrow teaching to the tests most damages schools serving low-income children.
2) Schools will be under the gun of accountability (based on tests) without the resources to do a good job - reinforcing the likelihood of narrow teaching to the test, blaming school personnel for things beyond their control, and imposing sanctions (e.g., restructuring) that are not likely to work but only cause more disruption and lower levels of achievement.
3) The use of tests for accountability for schools likely will increase calls for students also to be held "accountable," and thus for more mandatory testing for grade promotion and graduation. The emphasis on tests will reinforce the traditional use of tests to sort and treat differently, rather than to help all children receive a high-quality education. No state test measures, for example, the real array of knowledge, skills and understandings students need to succeed in good colleges. Where the goal is success in good colleges, the tests will have less power; where the goal is test scores, many students will graduate with the illusion that they have been prepared to succeed in college.
The unfortunate reality is that at this time, most states probably will actively embrace these dangerous procedures. Doing so will undermine, not encourage, high quality education; and for schools which seriously need improvement, they will get tools for test prep not means for substantive improvement.
4) The testing dangers are compounded by the accountability provisions, which rest on annual increases in the percentage of students who score at "proficient" or above on state assessments coupled with interventions and sanctions for schools and districts which do not demonstrate "adequate yearly progress." The procedures will intensify the teaching to the test. The resources for effective assistance, however, are far less than needed. The possible sanctions have all been tried and most have failed to improve schools even as measured by test score gains. While funds exist for improving assessments and for professional development, they too are inadequate. And there is no indication that the President or the Congress will act to address the many factors that powerfully undermine schools, including housing, nutrition and medical care.
Thus, schools are expected to succeed without the needed resources, and success is defined so narrowly as to undermine any chances at high quality education. The result will be many schools that fail to make the required test score gains and other schools that make the gains but fail to provide a high quality education to their students. A multi-tiered education system will thus continue, but now with the dangerous illusion that such a system is being replaced.
One major hope:
The legislation does not require standardized tests, but rather "academic assessments." Thus, other assessments, including classroom-based assessments, can be used - provided they can be used to show student progress in light of standards and are sufficiently reliable (a possible problem) and valid (less likely a problem). How tightly defined/controlled by the state such assessments must be remains unclear - models would have to be developed, fought for, implemented. The sanctions provisions include allowance for an undefined alternative (an "other") to the list of actions from which a state or district must select in the event of (respectively) district or school "failure." The bill neither requires nor bans high stakes based on one test for students (it should have banned it). Thus, a state can take a substantially different approach to assessment than to rely entirely on standardized tests. Some states will try to do this. However, the needed resources still are not available, and the punitive and unworkable sanctions may well undermine states that attempt a better approach.
FairTest calls on all states to move toward classroom-based assessments instead of relying on tests and to pressure Congress to amend the new law to allow decisions to be made on a wider basis of evidence than just state assessments, not force states to take "corrective actions" that have not proven to work, and appropriate sufficient funds to provide every child access to a high quality education.
Other FairTest statements and analyses of this bill are at as of January 7, and more will be added shortly.
Title I provisions, with commentary
Title I has multiple sections and parts; Part A is the traditional part that provides funds to assist low-income students and schools; some of the sections are summarized, with commentary (at end of sections or in brackets within the text), as follows:
Sec. 1002 - allocations:
Grants for Title I part A are $13.5 billion for current fiscal year (thru Sept 02), then $16 billion, rising to $25 billion in FY2007, when the authorization ends. Authorization is not appropriation, so less may be appropriated. Other parts of Title I have separate authorizations, often for "such sums as necessary."
Comment: If the goal is to leave no child behind, the sums are disastrously inadequate. Many more tens of billions of dollars are needed for schools alone - and more than that to address consequences of poverty that (among other things) undermine school performance – such as housing (to address high mobility), nutrition and medical care. Congress and the President, however, have seen fit to provide hundreds of billions of dollars in tax breaks mostly for corporations and the wealthy, rather than to "leave no child behind."
Sec. 1111: State plans
Under Title I, states must present a plan. This section mandates state standards and assessments that apply to all students (not just those served by Title I) and includes the accountability procedures (the steps to be taken are in 1116); states that do not allow state standards or assessments can proceed differently in order to provide standards and assessments for students served by Title I. [Comment: It may be that only Iowa fits the exception. Will some states deliberately back off? If they do, they will subject children from low income families to the plan and exclude others.]
Standards [1111(b)(1)] have to be in math and reading or language arts, and add science by 2005-06. They are to include "challenging content standards" with "coherent and rigorous content" that "encourage the teaching of advanced skills," plus "achievement standards" aligned with the content standards that create three levels - advanced, proficient, and basic – leaving a de facto "below basic" level as well, thereby creating 4 levels.
Comment: Most states already do all of this, most of the rest are on their way. Two issues arise: should states dictate standards, and if so, should they be skeletal and basic, or elaborate and detailed? Most are very elaborate and call for more than any living human probably knows. (For critiques of standards, see Alfie Kohn and Susan Ohanian.) FairTest believes it is not unreasonable to expect graduates of high schools to meet some standards - but does not believe that aside from a basic core they must be the same for all students, though all students must have access to a high quality education. Further, consideration must be paid to students with special needs or whose first language is not English. (See National Forum on Assessment, Principles and Indicators for Student Assessment Systems, published by FairTest.) The standards process also has inadequately involved the public in substantive discussion about the goals of education and what reasonable diploma requirements should be. That said, the federal law has no concrete requirements for standards beyond naming the three subject areas and requiring both content and performance standards.
Accountability [1111(b)(2)] rests on the standards, and on the assessments described in (3) (below). States must have a "single statewide accountability system" to ensure districts and schools make "adequate yearly progress" (AYP). Subparagraph (C) defines AYP, and we excerpt from it extensively below. First, however, the essentials:
- every state is to ensure that all schools and districts (local education authority, or LEA) make AYP on the state assessments, and that in each school and district, the students in several named groups (low income, minority, limited English proficient, special needs), also make AYP on the state assessments;
- graduation rates (for high schools) and one other measure for elementary schools (to be chosen by the state) will be included in accountability;
- other academic indicators can be included, but cannot be used to remove a school or district from sanctions (only AYP on state assessments and graduation/elementary other measure will count);
- accountability process starts with gathering data from 2001-02 school year (except for schools already under improvement or correction status);
- by 12 years from 2001-02 (2014), all students will meet the proficient level on state tests [note that state tests vary greatly in difficulty and in how many students now reach proficient];
- steady progress toward this goal is required, along the lines of 1/12 per year (e.g., if 48% of students are not proficient, each year an additional 4% should reach proficient)
- each group of students is to make AYP toward the goal of 100% proficient (e.g., if 60% of poor kids are not proficient, then an additional 5% per year should reach proficiency - a faster rate than the overall state average, which is to help close the gap) – but there is a partial out for that requirement at least in any couple-year block, if not for the overall goal.
- 95% of students in each group must take assessment (accommodations and alternatives allowed for special needs) [this will make boycotting tests more of a problem]
- since progress is uneven and because the test scores are volatile, states can average scores over 3 years (on volatility, see FairTest Examiner, Summer 2001); states also must set intermediate benchmarks; and
- the graduation or "other elementary" requirement appear to be a separate hurdle: that is, progress on assessments is required independent of progress in increasing graduation rates, and failure to make AYP will lead to interventions regardless of progress on the graduation rate. While progress on assessments has a specified rate of progress and defined goal (100% proficient), graduation does not (for example, there is no requirement that schools or districts have 100% graduation rates within 12 years, to be reached in steady increments). [While the "other academic assessments" category (other than state measures and the graduation or "other elementary) explicitly cannot be used as an offset, that injunction is not stated in the discussion of graduation rates. However, the language states AYP will be based solely on the state assessments, and then used for interventions established in Sec. 1116.]
Here is the text; comment will follow:
``(C) Definition.--`Adequate yearly progress' shall be defined by the State in a manner that--
``(i) applies the same high standards of academic achievement to all public elementary school and secondary school students in the State;
``(ii) is statistically valid and reliable;
``(iii) results in continuous and substantial academic improvement for all students; ``(iv) measures the progress of public elementary schools, secondary schools and local educational agencies and the State based primarily on the academic assessments described in paragraph (3);
``(v) includes separate measurable annual objectives for continuous and substantial improvement for each of the following:
``(I) The achievement of all public elementary school and secondary school students.
``(II) The achievement of--
``(aa) economically disadvantaged students;
``(bb) students from major racial and ethnic groups;
``(cc) students with disabilities; and
``(dd) students with limited English proficiency; except that disaggregation of data under subclause (II) shall not be required in a case in which the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student;
``(vi) in accordance with subparagraph (D), includes graduation rates for public secondary school students and at least 1 other academic indicator, as determined by the State for all public elementary school students; and
``(vii) in accordance with subparagraph (D), at the State's discretion, may also include other academic indicators, as determined by the State for all public school students, measured separately for each group described in clause (v), such as achievement on additional State or locally administered assessments, decreases in grade-to-grade retention rates, attendance rates, and changes in the percentages of students completing gifted and talented, advanced placement, and college preparatory courses.
(D) establishes "Requirements for other indicators" (essentially, be valid and reliable). Also, ``(ii) except as provided in subparagraph (I)(I) [annual improvement], may not use those indicators to reduce the number of, or change, the schools that would otherwise be subject to school improvement, corrective action, or restructuring under section 1116 if those additional indicators were not used, but may use them to identify additional schools for school improvement or in need of corrective action or restructuring.
``(E) Starting point.--Each State, using data for the 2001-2002 school year, shall establish the starting point for measuring ...the percentage of students meeting or exceeding the State's proficient level of academic achievement on the State assessments. The starting point shall be...based on the higher of the percentage of students at the proficient level who are in (i) the State's lowest achieving group of students or (ii) the school at the 20th percentile in the State...
``(F) Timeline.--Each State shall establish a timeline for adequate yearly progress. The timeline shall ensure that not later than 12 years after the end of the 2001-2002 school year, all students in each group... will meet or exceed the State's proficient level...
``(G) Measurable objectives.--Each State shall establish statewide annual measurable objectives, pursuant to subparagraph (C)(v), for meeting the requirements of this paragraph, and which--
``(i) shall be set separately for the assessments of mathematics and reading or language arts...
``(ii) shall be the same for all schools and local educational agencies...
``(iii) shall identify a single minimum percentage of students who are required to meet or exceed the proficient level on the academic assessments that applies separately to each group of students described in subparagraph (C)(v) [excerpted above];
``(iv) shall ensure that all students will meet or exceed the State's proficient level of academic achievement on the State assessments within the State's timeline...; and
``(H)... State shall establish intermediate goals for meeting the requirements, including the measurable objectives in subparagraph (G), of this paragraph and that shall-- ``(i) increase in equal increments over the period covered by the State's timeline under subparagraph (F); ``(ii) provide for the first increase to occur in not more than two years; and ``(iii) provide for each following increase to occur in not more than three years.
``(I) Annual improvement for schools.--Each year, for a school to make adequate yearly progress under this paragraph--
``(i) each group of students described in subparagraph (C)(v) must meet or exceed the objectives set by the State...except that if any group described in subparagraph (C)(v) does not meet those objectives in any particular year, the school shall be considered to have made adequate yearly progress if the percentage of students in that group who did not meet or exceed the proficient level of academic achievement on the State assessments under paragraph (3) for that year decreased by 10 percent of that percentage from the preceding school year and that group made progress on one or more of the [other] academic indicators described in subparagraph (C)(vi) or (vii); and
``(ii) not less than 95 percent of each group of students described in subparagraph (C)(v) who are enrolled in the school are required to take the assessments, consistent with paragraph (3)(C)(xi) and with accommodations, guidelines, and alternative assessments provided in the same manner as those provided under section 612(a)(17)(A) of the Individuals with Disabilities Education Act and paragraph (3), on which adequate yearly progress is based (except that the 95 percent requirement described in this clause shall not apply in a case in which the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student).
``(J) Uniform averaging procedure.--For the purpose of determining whether schools are making adequate yearly progress, the State may establish a uniform procedure for averaging data which includes one or more of the following:
``(i) The State may average data from the school year for which the determination is made with data from one or two school years immediately preceding that school year.
[ii allows states for a time to use data from assessments under previous ESEA]
Comment on Accountability:
The process rests on assessments, with graduation rates a second hurdle. As noted in the introductory section to this analysis, the accountability provisions will likely lead most states to intensify and expand their uses of standardized tests. This will result in narrowing teaching and curriculum to what is tested - and what is tested is a weak match for state standards or for what would be a high-quality education. Teaching to the test will not lead to high quality schooling. More, the use of tests for accountability for schools likely will increase calls for students also to be held "accountable," and thus for more mandatory testing for grade promotion and graduation.
More subtly, perhaps more perniciously, the focus on tests will reinforce of a multi-tiered educational system. The tests do not and cannot adequately represent what students need to know to succeed in college. Some schools/districts, mostly wealthier, will provide at least most of their students with an education aimed at success in a high-quality college. Other schools/districts, with fewer resources and mostly serving low-income families, will tend to narrow curriculum and instruction to test prep that will not provide avenues to success for their students.
Adequate resources are not authorized and will not be provided. Thus, it is not likely that, unless the definition of "proficient" is set very low, anything like 100% of students will reach proficiency in 12 years. Of course, "proficient" is very different state to state; and although states will have to participate in the National Assessment of Educational Progress, no penalties will be attached to states that do not make progress on NAEP, though NAEP tests become the de facto ultimate definition and measure of "proficiency." More, with proficiency simply based on tests, "proficiency" will not mean a student has the knowledge, skills, understandings to succeed in college, make a well-paid living, and contribute as an active citizen. (Of course many people do succeed independently of how well they did in school - but clearly schools shape longer-term outcomes, even if mostly by adding more to those who are already more privileged: them that's got, shall get.)
What of the possibility of doing things differently, not relying on standardized tests? As we will discuss in the next section, we think that using a different approach can meet the legislative requirements, though not without difficulty. In such a process, to meet accountability requirements, classroom-based, local authentic assessments (as in the Mass. Coalition for Authentic Reform in Education (CARE) plan, supported by the Massachusetts Teachers Association) would have to:
- be based on state standards (which themselves may need changing);
- be adequately reliable - that is, the summary evaluation of student progress must be done in a way that the determination of whether a student has reached proficient (or the other levels) is reliable (potentially technically complex). Since many states have low reliability in scoring "essays" and those test results are accepted, this may not be too huge a hurdle. Some high quality classroom-based assessments, such as the Learning Record, evidence strong reliability. The problem may be more political, overcoming the beliefs about portfolios, than technical (see further discussion under assessments);
- be valid. If based on actual work students do, and the samples of students' work or the procedures for evaluating it comprehensively respond to the standards, validity should be less of a problem than it is for state tests that are merely several hour snapshots using limited technology;
- be aggregatable; that is, up from school to district to state, to meet the various requirements. However, since the requirement is simply the percentage of students reaching proficient, this should not be technically difficult. The local assessments would have to be numerically scorable, which will introduce dangers of confusing the score for the substance behind it;
- be reported by the various demographic groups, which should be no more difficult for authentic assessments than for standardized state tests.
The other requirements can be met as easily by authentic assessments as by tests, if not more so (e.g., making the 95% participation threshold will be no problem if the students attend school).
All that said, it means that the critical question is with the assessment requirements themselves, to which we turn next. First, one more caution: the assessment and accountability provisions are written with standardized tests as the operating assumption, the norm. Making high quality classroom assessments fit the accountability structure could destroy those assessments. This issue will have to carefully considered and studied. Alternatively, a state deciding to design "local" assessments to avoid standardized tests may hew too closely to the model of the standardized test, think first of accountability and only secondly of helping instruction, and thus create a cumbersome, distorted, overly centralized, and not very helpful structure. We will need to evaluate state assessments to determine whether that problem arises.
(3) Academic assessments.
State assessments are to be conducted in math and reading/language arts (and science in 2007-08), be based on state content and achievement standards, and be the "primary" method of determining progress toward the goal of 100% proficiency. The bill combines the previous ESEA requirement to assess once each in grades 3-5, 6-9, and 10-12 with a new provision to assess each child every year in reading and math in grades 3-8 by the 2005-06 academic year. [Only 15 states now test both subjects in all the grades to be required; about 13 states only assess in the grades now required by Title I, and Iowa does not have a state assessment.] The effective result is required assessments in reading and math for 3-8 and reading/language arts and math once in grades 10-12, with science to follow in the 3-5, 6-9, 10-12 pattern. The terms used are "acadmic assessments" that "measure" the degree of achievement. It does not require standardized tests.
The assessments are to be valid and reliable for the purposes for which they are used and "involve multiple, up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills." [Comment: beyond this vague language, there is little to assure that the tests will be of high quality or useful. This language was in the 1994 reauthorization, and states failed to meet the multiple measures and higher-order thinking requirements - even with generous interpretations of the quality of the state tests. The Commission on Instructionally Supportive Assessment has produced a set of recommendations for improving state assessments, which FairTest has critiqued, concluding that the recommendations will not ensure instructionally supportive assessment but would, if followed, improve the quality of tests. However, there is no reason to believe that states will meet these requirements of the law, never mind the Commission recommendations.]
Accommodations and alternatives are authorized for students with disabilities, as per IDEA (Individuals with Disabilities Education Act).
LEP students are to be assessed where possible in "language and form most likely to yield accurate data" on student achievement, until they reach proficiency in English; and be assessed annually for English proficiency (oral, reading, writing) for those not proficient. Students who have been in US for 3 years (not including Puerto Rico) will be assessed in English, though individual waivers can extend two more years. (See FairTest Annotated Bibliography on Language Minority Assessment.)
Students who have moved schools in a year but stayed in one district will have scores counted only a district, not school, level.
The assessments also must "produce individual student interpretive, descriptive, and diagnostic reports...that allow parents, teachers and principals to understand and address the specific needs of students" and provide reports to parents as soon as practicable, in a uniform format and "to the extent practicable" in a language understandable to parents ((3)(C)(xii); and "enable itemized score analyses to be produced and reported so teachers and parents etc. can interpret and address the specific academic needs of students (xv).
[Comment: this may provide more opening for parents to demand that assessments be made public after administration, as is now done in ME, MA, NH, OH and TX, and to get copies of the test, the student's answers, and the wanted answers or (for open ended questions) the rubrics and exemplars. (Note that in MA, for example, student responses to open-ended items is not returned to the school or the parent.) The requirement of "diagnostic" could be valuable, in that standardized tests are of very little real diagnostic use, while good classroom assessment can provide reach information for helping each student ("formative assessment" that is diagnostic and provides rich prescriptive and summative potential as well). If it is argued that the reliability for accountability of classroom assessments is lower, it can be countered that the requirement that assessments be diagnostic should carry as much weight.]
Data will be disaggregated by gender, each major racial/ethnic group, English proficiency, disabilities, economically disadvantaged, and migrant status. [Comment: The Mass. CARE proposal calls for disaggregated data, a position FairTest supports - but not based solely on tests.]
The assessments also are to ``(xiv) be consistent with widely accepted professional testing standards, objectively measure academic achievement, knowledge, and skills, and be tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information;" [Comment: clearly, authentic assessments can meet professional standards. The use of the term "objective" should not be a problem: a grade based on academic performance and given by a teacher is as "objective" as a score on a writing prompt given by a marginally trained, less well prepared scorer. If the local summary assessments relate to the standards, the issue of "objective" should not arise.]
If specified amounts for developing and implementing tests are not appropriated, then administration of the tests can be suspended until the funds are appropriated. The "trigger" is funding of at least $370 million in FY02, rising to $400 million for fiscal years 05-07. [The text on the web refers to 6204c for authorizing language for this, but there is no such section in the table of contents for the Act. Title VI, Sec. 6111 appears to be the correct section.]
[Note also that Sec. 6112 provides grants to states to develop "enhanced assessment instruments." The allowable uses are somewhat flexible and could be used to develop classroom-based assessments that the state defines as part of the state assessment system. Funding for this section appears to be contingent on sufficient funds being appropriated under 6111.]
State plans are to describe how states will help districts and schools improve. One aspect is to ensure teacher quality, including that "poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers." [Comment: it will be interesting to see whether anything comes of this; there are substantial sections in the overall bill on professional development (Title I Sec. 1119 on teacher qualifications, but see primarily Title II on preparing teachers and principals).]
Other subsections under assessment require state and district report cards, participation in biennial NAEP reading and math assessments at grades 4 and 8 [meaning more frequent NAEP testing], and parental involvement and rights to know.

Comment on assessment:

This section does not require standardized tests, never mind multiple-choice standardized tests. A state could establish a state system of local assessments, as Mass CARE calls for. As discussed above, the questions will involve reliability and the degree of state proscriptiveness that could be quite dangerous for high quality assessment. Nonetheless, assessment reform advocates should push plans for high quality assessment and authentic accountability, persuading states to go this route, then battling over details as needed either with the state or allying with the state against the federal government.
In the period before the legislation was passed, educators in Maine pressured Senator Susan Collins to make sure the legislation would not undermine a new state plan to rely on local assessments as well as the state tests in grades 4, 8 and 11. Sen. Collins wrote to Secretary Paige about this, and he responded giving his assent, provided that conditions of reliability, etc. were met. Here are a few relevant passages from Sec. Paige's letter that indicate both the general approval and the requirements:
"...It does not preclude a mixed State/local system like Maine operates, provided the system is able to meet the other requirements in the legislation. [lists alignment with standards, provide coherent information, valid and reliable]... States must provide evidence to the Secretary from the test publisher or other relevant sources that the assessments are of adequate technical quality for each purpose required under the Act... if local assessments are included in a State's assessment system, the combined assessments would have to be aligned with State standards and be of acceptable technical quality... Maine would need to establish a process by which it reviews and approves local assessments to be included in its State system. This process must ensure rational, fair and equitable determinations throughout the State for identifying schools in need of improvement. Moreover, because the [Act] requires a State-level determination of adequate yearly progress, Maine would need to be able to aggregate, with confidence, data from disparate local assessments... Using panels of experts knowledgeable about assessment and accountability systems, the Department would review evidence of Maine's mixed State/local system to determine whether it meets the new statutory requirements... Based on an initial reading of the conference report [the Act as finally approved] and what we know about Maine's high quality assessment system, I anticipate that Maine will not have difficulty in meeting the requirements of this Act."
We have heard that Maine plans to proceed with its "mixed" plan (for a description, see We should note that some educators in Maine have argued that the assessments are on too fast a track for feasible implementation. They also have raised concerns about the quantity and quality of the state's standards and the degree of state control being exerted through the standards.
Other states are likely to move in a similar fashion. Nebraska, for example, uses a mix of local assessments in its current state system.
Lastly, while funding is available under Secs. 6111 and 6112 to develop new assessments, and professional development funds can be used to help teachers learn to use new assessments, the funding authorized (never mind appropriated) may be quite insufficient for the tasks.
Sec. 1112 - Local Educational Agency [LEA] Plans
Much of the language in this section parallels that in the state plan section
District plans are to describe any assessments (used to determine success, assist in diagnosis or teaching, and identify students at risk) or other indicators, in addition to the state assessments, that they plan to use; explain how the district will provide additional assistance to students needing help or to low-achieving schools what professional development they will provide; and promise to participate in NAEP if selected. The section notes that additional assessments cannot be used in lieu of the required state assessments or to reduce the number of schools subject to "improvement, corrective action, or restructuring." It requires the districts to "ensure" that "low-income students and minority students are not taught at higher rates than other students by unqualified, out-of-field, or inexperienced teachers."
Districts are to use the state assessments to review annually the progress of each school to determine if they are making progress to ensure that all students meet the proficient level within 12 years.
States will review each district's plan.
There is a detailed, lengthy subsection on limited English proficient students; the assessment requirements were summarized above.

Section 1113 - eligibility

This section establishes the criteria for school eligibility for the funds [as there are not enough to go around]. The plan is to get the additional money (beyond previous authorizations) to the most impoverished students/schools, and commentators we have read agree that the new authorization does a better job than previous authorizations of targeting money to poor districts.
Section 1114 - Schoolwide Programs
If 40% or more of the children are from low-income families, a school can establish a school-wide program, using Title I (and other federal) funds to serve all children in the school rather than individually-identified children. A school must do a needs assessment, including achievement on the state standards, and explain how it will meet the needs of low-achieving students. Most of this sections specifies allowable or preferred uses of the funds.
Section 1115 - Targeted Assistance Schools
These schools receive funds to be spent on targeted individuals, not the whole school. The section describes student eligibility, to include how well the students are performing on the state assessments, and then how the funds may be used.
Section 1116 - Academic Assessment and Local Agency and School Improvement
This is the section explaining how accountability is to operate for schools and districts, and is thus based directly on Section 1111. Note that Sec. 1116 mostly applies to schools receiving Title I Part A funds. It may be that schools or districts receiving little money from Title I choose not to receive that money to avoid the sanctions in this section, which do not apply to schools and districts that do not receive Title I funds. It is a long and complicated section, so bear with the details.
(a) each LEA is to: "use the state assessments and other indicators... to review annually the progress of each school served under this part to determine whether the school is making adequate yearly progress"; use any other academic indicators the district has included in its plan (with limitations noted above); publicize the results of the annual review; and review the effectiveness of actions with respect to parental involvement and professional development.
(b) School Improvement. The LEA will "identify for school improvement any elementary school or secondary school served under this part that fails, for 2 consecutive years, to make adequate yearly progress." [This appears to mean that all the requirements of this section are based solely on the results of the state assessments, since as per Sec. 1111, those assessments are the sole basis for determining AYP.]
The baseline for the calculations is the 2001-02 school year, thus using whatever state assessments are now in place. (Schools already named as needing improvement or in corrective action, etc., do not wait the 2 years but are placed in one or another of the categories of "improvement" created by this Act - details are in subsection (f) of this section). Assuming the language means two years after the base year, the first schools eligible for this determination (other than those that already have been named under the previous authorization) will be named after the 2003-04 school year (by start of school in fall 2004). If "almost every student in each group" scores proficient then AYP requirement does not apply.
In the case of a school identified as needing improvement, all its students are eligible to transfer to another public school ("public school choice") in the district that has not been identified as needing improvement, with priority of transfer to the lowest achieving children. Transportation will be available (see below). [Comment: this assumes a meaningful number of open seats; parents often know which schools are better, though they may not define better simply by test scores, and those schools are apt to be full already. This may prove to be a meaningless offer disguised as "choice."]
The school can review and appeal its identification. Once finally identified, a school will craft an improvement plan within three months. It will "incorporate strategies based on scientifically based research" [this term is defined in Sec. 9101 "Definitions"] and adopt policies and practices "that have the greatest likelihood of ensuring that all groups of children... will meet the State's proficient level." At least 10% of the school's funds are to be spent on professional development. The school will state "specific, measurable objectives" for ensuring all students in each group make AYP toward the goal of all students reaching proficient in 12 years from the baseline. [This appears to mean making a calculation of the new needed rate of progress since AYP was not made in the previous two years.] After a school designs its plan, the LEA will review it within 45 days. The school will implement the plan "not later than the beginning of the next full school year following the identification" - but if the plan is not ready until after the start of the school year, then it will be implemented immediately on completion and approval (e.g., if identified by start of school in fall 2004, the plan would be crafted in ensuing 3 months, then approved, and then implemented; this could be about 4.5 months into the school year - or into January of 2005).
The LEA also will provide technical assistance throughout the plan's duration, to include analyzing data from the state assessments "and other examples of students work." Parents are to be notified about the identification and the plans for improvement.
If the school does not meet adequate yearly progress by the end of the first year after it was identified (e.g., end of the 2004-05 year in our continuing example), the LEA will continue to make the transfer optional available, make supplemental educational services available (see below for more on this), and continue to provide technical assistance (e.g., for the 2005-06 year).
If after a second year of the improvement plan (end of second year after identification, which may be only 1.5 years of having the plan – e.g, by end of 2005-06 school year) the school is not making AYP, the district will identify the school for corrective action and "take at least one of the following corrective actions" (e.g., during 2006-07):
- "replace the school staff who are relevant to the failure to make" AYP;
- "institute and fully implement a new curriculum" to be "scientifically based" and include professional development;
- "significantly decrease management authority at the school level";
- "appoint an outside expert to advise the school";
- "extend the school year or school day for the school"; or
- "restructure the internal organizational structure of the school."
This can be delayed under emergency situations. The district will inform parents and the public about what is being done.
If after one full year of corrective action the school the school continues to not make AYP (e.g., after 2006-07 school year), the LEA will continue to provide in-district choice and supplemental services, and under restructuring it will make a plan for "alternative governance," to include at least one of the following (e.g., for 2007-08 school year):
- reopen school as a "public charter school";
- replace "all or most of the school staff... who are relevant to the failure to make" AYP;
- enter into a contract "with an entity, such as a private management company, with a demonstrated record of effectiveness, to operate the school"; [comment: if effectiveness means doing better than the public schools, there may be no honestly available options]
- turn "the operation of the school over to the State;" or
- "any other major restructuring of the school's governance arrangement that makes fundamental reform."
If a school identified for improvement, corrective action, or restructuring makes AYP for 2 consecutive school years, the requirements of improvement, etc., will cease.
Comment: none of the specified options has a record of success - all have been tried and usually have not succeeded even in the narrow terms of rasing test scores substantially over time (for more on this, see FairTest's critique of the legislation as it was proposed in Congress, on this web page). The last, vague option was added in conference - perhaps in recognition of the absence of a positive record for the listed options.
The Washington Post (Michael Fletcher, Jan. 2, 2002) reported that "More than half of the 9,100 schools identified as underperforming [under previous ESEA] received no additional assistance, according to a federal report released in January 2001." While this bill increases the authorization, there is simply no reason to believe there will be anything close to enough money to ensure that the far more numerous group of schools likely to be named under this bill receive any meaningful assistance. Many will thus face interventions and takeovers using methods that have no reasonable record of success.
(c) State Review. Under state responsibilities, the state is to monitor the district to ensure the district does its job correctly, including conducting an annual review of district progress and publicizing the findings; and it can offer rewards (see 1117). Districts which do not make progress after 2 years from the baseline will be identified for improvement (much of this section simply parallels what districts are to do to and with schools). The LEA has 3 months to craft a plan (basically same contents as schools are to have) that will be implemented by the start of the school year or as soon after as it can be. (LEAs identified as needing improvement or correction prior to the effective date of this act are placed in one or another category of improvement under this Act - see paragraph (f).)
By the end of the second year after identification, if progress is not made, the state will identify the district for corrective action to include at least one of the following:
- defer programmatic funds or reduce administrative funds;
- implement a new curriculum;
- replace LEA personnel who are relevant to the failure to make AYP;
- appoint "a receiver or trustee to administer the affairs of the [LEA] in place of the superintendent and school board";
- abolish or restructure the LEA;
- authorize student transfers to schools in other LEAs.
The sanctions to districts can be delayed one year for emergencies. Barring that, the time frame is 4 years after the baseline: two years not making AYP leading to improvement plan, then 2 years of improvement plan not producing AYP leads to corrective action. If a district makes AYP for 2 consecutive years at any point after initial identification, then the requirements of improvement or correction cease.
(e) Supplemental Services. Low-income students in low-achieving schools (after 3 years of not making AYP (e.g., 2005-06) are eligible for supplemental services (e.g., tutoring) by a "provider with a demonstrated record of effectiveness...[based on] objective criteria... in increasing the academic proficiency of students." The state will establish the criteria. [How effectiveness is to be established is not stated.] Providers may be public or private agencies or the LEA. Parents select the provider from a list of approved providers. The amount set aside for supplemental services for each eligible child is to be the lesser of the actual cost or "the amount of the agency's [LEA] allocation under subpart 2, divided by the number of children from families below the poverty level."
Substantial shares of a district's funds may be expended on transportation to a public school of choice or supplemental services if a school falls under the improvement, etc., categories. Unless a lesser amount satisfies the demand, an LEA is required to spend at least 20% of its allocation under subpart 2 [the subpart which authorizes and allocates funds] on these two categories - 5% on transportation, 5% on supplemental services, and the remaining 10% on one or both of them. [This requirement is under paragraph (b) and appears to put a cap on the expenses covered in paragraph (e) - meaning that the amount for supplemental services will be capped even if there is more demand for supplemental services than can be met by the above 20% rule. In other words, a district is to spend up to 20% of its Title I allocation if there is demand for these two options. Obviously, this will reduce the funds available to the schools, which may thereby harm the opportunities to learn of students in the school. We have not attempted to figure the actual potential cost to districts.]
Specific procedures for schools funded by the Bureau of Indian Affairs are described in paragraph (g).
Section 1117. School Support and Recognition
Subsection (a) describes a state system of support for LEAs and schools. The emphasis is on creating school support teams that can analyze a school and proffer suggestions for school improvement.
Subsection (b) mandates a state recognition program for schools that make greater than required progress over several years toward meeting the goal of all students reaching proficiency or the goal of closing the achievement gaps. The best are to be "distinguished schools" and models for other schools. A limited amount of funds may be used to provide cash rewards to schools or teachers.
Funding for this section comes from reservations and allocations to the states, which will rise in total from 3 to 5 percent of the state awards; most of the funds will be used for improvement efforts under this section or section 1116. [They are probably inadequate for the purpose, and certainly will be if many schools are labeled in need of improvement, etc., as discussed above]
Section 1118 is on parental involvement.
Section 1119 requires that by the first day of the next school year, LEAs are to ensure that all teachers hired to teach in core subjects and teaching in a program supported by this part [Title I] are "highly qualified." By 2005-06, the state is to ensure that all teachers teaching in core academic subjects in the state [not just in the funded LEAs or schools] are "highly qualified." Local and state plans are to be created to reach this goal. [The term "highly qualified teachers" is defined in Sec. 9101 "Definitions," but this section does specify the qualifications of paraprofessionals.]
Title II provides funds and rules for recruiting and training of teachers and for professional development of teachers and principals.