Provisions of the New Federal Law

University Testing
The key testing and accountability provisions of the new, 1000-plus page Elementary and Secondary Education Act (“No Child Left Behind Act”) are in Title I, the part of the law intended to improve education for “disadvantaged” children.

Each state is required to have content and performance standards in both reading and math, with assessments based on them, and add science later. The achievement standards must establish three levels - advanced, proficient, and basic – leaving a “below basic” level as well. Every state but Iowa now has standards and at least some state-mandated assessments.


By the 2005-06 academic year, states must assess each child every year in grades 3-8 and once during high school in math and reading/language arts based on the content and achievement standards. However, some state officials hope that commercial norm-referenced tests will still be allowed though they are not based on state standards.


These assessments will be the “primary” method of determining progress toward the goal of all students reaching the “proficient” level within 12 years (by 2014). Only 14 states now assess both subjects in all these grades, of which only 9 use standards-based tests in all the required grades, while 13 assess only three times from grades 3 to 12. By 2007-08, states must add an annual science assessment once each in grades 3-5, 6-9 and 10-12.


The new law says 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.” 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.” FairTest and other reviews of state tests find no standardized state or commercial tests now used by any state fully meets these requirements.


Assessment results must be broken down by gender, race/ethnicity, English proficiency, disability, economic background, and migrant status. Accommodations and alternatives are to be available for students with disabilities. Limited English proficient 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 to be assessed annually for English proficiency if not yet proficient.


Some funding is authorized to help states develop and administer new assessments, though the amount authorized is far less than what will be required. The shortfall increases incentives to use inexpensive, multiple-choice tests. If sufficient funding is not appropriated for test development in any year, states may postpone the required test administration. Funds are also provided for states to innovate and to develop multiple measures. (These last two measures were introduced by Sen. Paul Wellstone; see Examiner, Spring 2001).


State progress will be evaluated using the National Assessment of Educational Progress (NAEP), which will be administered every other year to a sample of students in every state in reading and math. However, no sanctions apply to states that fail to make adequate progress on NAEP.


States must have a “single statewide accountability system” to ensure districts and schools make “adequate yearly progress” (AYP). Graduation rates (for high schools) and one other measure for elementary schools (at state discretion) must be included in accountability reports - but will not affect the AYP determination. Thus, it is not clear how these indicators will be used.


The accountability process begins with data from the 2001-02 school year (except for schools already under improvement or correction status). Within 12 years (2014), all students are supposed to attain the proficient level on the various state assessments. Steady progress toward this goal is required, with the gap to close by 1/12 per year. For example, if 48% of students are not proficient in 2001-02, an additional 4% should reach proficient each subsequent year.


In addition, each subgroup of students is to make AYP at the school and district levels. If 60% of poor kids are not proficient today, then an additional 5% per year should reach proficiency - a faster rate than the overall state average, in order to close the gap. Since progress is uneven and because the test scores are volatile, states can average scores over 3 years (on volatility, see Examiner, Summer 2001).


For a school to make AYP, 95% of the students in each subgroup must be assessed. This will make parent and student test boycotts more difficult because schools and districts will have a powerful impetus to ensure all students take the tests. The pressure on schools and districts may also lead to further demands for high-stakes testing of students to determine grade promotion and graduation.


State are to create a recognition and reward program, possibly including financial incentives, for schools which perform well. Districts will “identify for school improvement” any school receiving Title I funds that fails for two consecutive years to make AYP, and states will similarly identify districts. Students at such schools will be eligible to transfer to another public school in the district, if space is available.


The earlier AYP provisions which passed both houses of Congress were criticized because most schools in the nation would end up labeled as needing improvement. It remains unclear how many schools will be identified under the new scheme.


An identified school (or district) must craft an improvement plan listing “specific, measurable objectives” for ensuring all students in each group make AYP. Once approved, the school will immediately implement its plan. At least 10% of the school’s funds are to be spent on professional development.


Local education agencies are supposed to provide technical assistance throughout the plan’s duration (as will the state for an identified district), but funding is not likely to be sufficient. A study of the previous ESEA found that half the 9100 schools identified as underperforming received no extra assistance.


If a school does not make AYP after one year under its improvement plan, the district will make tutoring available. This can include parent choice among district-approved private companies such as Kaplan or Sylvan.. Up to 20 percent of a district’s Title I funds can be expended for transportation to another school or for tutoring programs.


If after the second year of the improvement plan the school is not making AYP, the district will identify the school for “corrective action” and take at least one of the following steps: “replace the school staff”; “institute and fully implement a new curriculum”; “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.”


If a district identified for “improvement” by the state does not make AYP in two years, it too faces “corrective actions” that can include a state takeover.


If after one full year of corrective action a school continues to not make AYP, the school will undergo “restructuring,” to include at least one of the following: reopen the school as a “public charter school”; replace “all or most of the school staff”; enter into a contract “with an entity, such as a private management operate the school”; 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.” The last, vague option was possibly added because none of the listed options has a track record of success – even at raising test scores.


If a school (or district) identified for improvement, corrective action, or restructuring makes AYP for two consecutive school years, the requirements for improvement will cease.


Regulations on implementing the law are to be completed by the start of 2003. State leaders have expressed concerns about the details of regulations on the assessment and accountability provisions and will lobby for regulations they think they can best live with. FairTest will monitor this process and post information about it on our website.


• The full legislative text can be found at