New NCLB Regulations Proposed

K-12 Testing

FairTest Examiner - July 2008

The U.S. Department of Education has proposed sweeping changes to No Child Left Behind (NCLB) regulations, some of which could <do> further damage to schools. It has given six states permission to modify their sanctions, an action that appears contradictory to some of the proposed regulations.

The Department has allowed six states to implement a different set of sanctions than what the letter of the NCLB law requires in the later, "restructuring" stages of sanctions. Florida, Georgia, Indiana, Illinois, Maryland and Ohio obtained the reprieve, which the Department will grant to up to 10 states.

The states vary in what they say they will do. All are focused on boosting scores on standardized tests, whether through remediation programs or the use of consultants (Florida), training principals (Maryland), allowing more charter schools (Georgia), or explicitly increasing the amount of testing (Indiana). Florida faced restructuring more than 400 schools, but now will reconfigure only seven.

Supporters of the change said the flexibility allows states to focus on the neediest schools and to better target assistance, while critics worry the changes will allow states to ignore the needs of some groups, such as those with disabilities.

In an effort to formalize the Bush administration's desired alterations to NCLB in the absence of Congressional action, the Department has proposed dozens of new implementation regulations. In general, they fail to address the major problems caused by NCLB, represent an effort to rewrite the law through the regulatory process, and tend to perpetuate the Administration's one-size-fits-all approach to education. The regulations have yet to be finalized.

Among the many problems with the draft regulations that pertain to assessments:

- The regulations would require "significantly more rigorous and comprehensive" changes for schools in "restructuring," the most severe stage of sanctions, than changes made in the previous stage, "corrective action." They would intensify NCLB's automatic escalation of sanctions for not raising test scores in one year and would prevent schools from taking the time necessary to make the earlier changes work. This regulation would contradict the increased flexibility the Department just granted the six states.

- A clarification of the law's requirements that states use multiple measures that assess higher order thinking skills narrowly defines such measures as "multiple types of questions" on tests. This definition could bar many of the most educationally useful forms of assessment, such as performance tasks, projects, portfolios and exhibitions.

- Some states and civil rights groups have opposed regulatory language that could force states to classify English language learners solely on the basis of test scores, rather than allowing discretion by the schools and teachers who know the students.

- The draft regulations define the requirements a state must meet in order to be allowed to use "growth" models. However, a state would still have to show its students are on track to score proficient by 2014. As a result, use of this "growth" indicator, which has been allowed in a few states, has not led to a reduction in the rate at which schools are arbitrarily deemed to have not made "adequate yearly progress."


- The draft regulations are at