On January 8, 2002, President George W. Bush, with significant bipartisan support, signed the No Child Left Behind (NCLB) Act into law. At the time of its passage, President Bush decried the “soft bigotry of low expectations” of African-American, Hispanic, and disabled students and gave the law its name: No Child Left Behind. The idea was to measure the progress of all students, placing a particular emphasis on subgroups of students who have been on the low end of the achievement gap, and to hold states and schools accountable for each student’s progress. NCLB was a reauthorization of the Elementary and Secondary Education Act (ESEA), which was first enacted in 1965 and reauthorized in 1994. 20 U.S.C. ch. 70.
One of the law’s main functions is to provide so-called Title I funds to states. Title I funds are distributed to schools, which in turn generally use the money to finance programs and personnel in order to support its economically disadvantaged children. By providing Title I funds, Congress was able to implement requirements that applied to the states that accepted the money and to the public schools within those states. Many of NCLB’s requirements, however, particularly with regard to educational standards, are followed by schools regardless of whether their district or school receives Title I money.
NCLB set forth the ambitious goal for all children to be “proficient,” meaning that each student is performing at his/her average grade level, in the areas of reading and math by 2014. No Child Left Behind (NCLB) Act of 2001, Pub. L. No. 107–110, 115 Stat. 1425 (2002).
In order to achieve “proficiency,” NCLB employs several principles, all which helped redefine the role of the federal government in our students’ education: (1) it uses a standards-based model requiring states to teach and test to measure progress; (2) it incorporates accountability for academic student achievement, particularly when achievement goals are not met; (3) it requires schools to disaggregate data so that schools can track the progress of subgroups of students who are generally considered at-risk; (4) it addresses the need for highly qualified teachers; and (5) it places a greater emphasis on research-based instruction. NCLB places considerable responsibility on building principles, particularly on student progress and achievement, the quality of the school’s curriculum, and the quality of the teaching and instruction in classrooms.
There has been widespread criticism of NCLB, particularly as the law has been implemented and its flaws have become more apparent. Is it reasonable to expect that all students will become proficient by 2014? What does it mean to be “proficient” and who decides what constitutes “proficiency”? Does the emphasis on testing narrow the curriculum or give teachers the incentive to teach to the test? What is the effect of high-stakes testing on students, particularly ones who are vulnerable?
As 2014 approaches, these concerns have become more prevalent. Many view the ultimate goal of all students being proficient by 2014 as unattainable because NCLB has stigmatized nearly half of the public schools across the country as “failing.” Indeed, the goal of every student being proficient by 2014 has been compared to “Congress mandating that every city, town, and village in the nation must be crime-free by 2014 . . . or their police departments would be severely punished.” Diane Ravitch, Obama Grants Waivers to NCLB and Makes a Bad Situation Worse, Daily Beast (Feb. 10, 2012).
In the fall of 2011, President Barack Obama and his administration announced that they would entertain applications from individual states for waivers of many of NCLB’s requirements. Known as “ESEA Flexibility,” waivers will allow states to continue the process of education reform while relieving some of the pressure created by NCLB’s mandates. As of February 2012, ten states have applied for and received a waiver. However, reports have already stated that more than twenty-five additional states are in the process of applying, and it is expected that the number will continue to increase. It should be noted, however, that the waivers are not given out for free. States receiving waivers have certain mandates that they must follow, including adopting more rigorous academic standards, such as “Common Core” state standards; designing and implementing more robust teacher and administrator evaluations; and agreeing to forcefully intervene in underperforming schools.
This article provides a summary of the major aspects of NCLB, including a review of the law since its inception and how states have fared in light of it. It also provides insight into the modified approach being taken by the Obama administration through ESEA Flexibility.
The History of NCLB
NCLB’s central goal of improving the educational outcome for all students means just that . . . all students. Through the use of standardized tests, each school district and each school assess the entire student population to ensure that the school as a whole is moving toward “proficiency.” The students’ performance on the standardized tests is used to determine whether or not the school and its students are making adequate yearly progress, or AYP. The AYP goals are set for each grade, each subject area, and each subgroup, and are essentially used as a ladder so schools can measure the progress they are making toward their ultimate goal of “proficiency” in reading and math by 2014.
NCLB also highlights the troubling “achievement gap” that exists. In an effort to close the gap, NCLB requires schools to disaggregate data so they can measure the progress of certain at-risk subgroups and be accountable for their progress as well. These NCLB subgroups are
- Economically disadvantaged students;
- Students from major racial and ethnic groups;
- Students with disabilities under the Individuals with Disabilities Education Act; and
- Students with limited English proficiency.
Therefore, in order to make the AYP goals, the school as a whole and each subgroup must meet certain benchmarks each year, or the school would be considered failing. This has caused significant controversy because some schools have gone to extreme measures to increase their score. For instance, school administrators have been accused of encouraging students in certain subgroups to stay home on testing days or, even more troubling, encouraging students to drop out of school entirely to increase the school’s AYP score.
Failing schools not only suffer the stigma of being labeled such, but can also suffer real consequences of their status. NCLB includes a graduated system of interventions that are applied against schools that continuously fail to make AYP year after year. For example, schools that are failing for two years must offer school choice to students to a nonfailing school, or divert Title I funds to support supplemental services for students, such as private tutoring sessions. In the most severe cases, it is possible that the school would be restructured and educators and administrators would be replaced.
On the flip side, however, NCLB also includes a rewards program for deserving school districts whose students make AYP. For example, teachers and principals can receive financial incentives when student scores increase.
In addition to the testing requirements that are a central part of the NCLB standards-based approach, the law also required states to implement certain measures directed at improving education in each school district across the country. The following components were phased in over several years: report cards, teacher qualifications, increased funding, and Reading First Grants.
States and school districts are required to produce report cards, accounting for each school’s scores for statewide testing. The report cards are made public and are meant to assist in closing the achievement gap among states, school districts, schools, and subgroups.
Every new teacher has to be “highly qualified” in his/her subject, meaning he/she has to have at least a bachelor’s degree and pass a state test in his/her subject area. The qualification standards are also required for paraprofessionals. In order to be considered “highly qualified,” paraprofessionals must either (1) have completed two years of college; (2) have obtained at least an associate’s degree; or (3) demonstrate sufficient knowledge and teaching ability.
NCLB included provisions to increase funding where necessary, in an effort to give disadvantaged schools more money. The funding would then be used to implement research-based teaching programs and teacher trainings in schools in an effort to improve scores.
Reading First Grants
NCLB created Reading First Grants, which assist schools, especially those in high-poverty areas, in creating research-based reading programs for kindergarten through third-grade students. Reading First Grants will fund reading programs for ninety-minute blocks, five days a week, and will also be used to fund teacher training.
The Effects of NCLB
After ten years under NCLB, how have schools fared? According to the Center for Education Policy (CEP), for the 2010–11 school year, it is estimated that 48 percent of schools did not make AYP. Alexandra Usher, Ctr. for Educ. Policy, AYP Results for 2010–2011 (Dec. 2011).This was an increase over the previous year, which was 39 percent, and was the highest ever percentage of “failing” schools reported since NCLB’s implementation. Id.
Researchers have continued to analyze the “achievement gap” to see if NCLB’s strategy to highlight subgroup achievement has paid off for students. The Nation’s Report Card uses data collected through the National Assessment of Educational Progress (NAEP), which tests fourth- and eighth-grade students in the areas of reading and math. Nat’l Ctr. for Educ. Statistics, Inst. for Educ. Sci., U.S. Dep’t of Educ., The Nation’s Report Card: Findings in Brief: Reading and Mathematics 2011 (2011). In 2011, the Nation’s Report Card found that gaps between fourth- and eighth-grade black and Hispanic students either narrowed or stayed the same in reading and math but ranged from twenty to twenty-five points lower than their white peers. Gaps between economically disadvantaged fourth- and eighth-grade students, as compared to their peers, has remained fairly constant since 2003 and ranged from twenty-four to twenty-nine points.
The numbers paint a grim picture of the status of schools across the United States and their ability to succeed in the NCLB framework. The persisting “achievement gap” remains a significant challenge for schools. In addition, more and more schools are becoming frustrated with the “failing” label. But do the numbers tell the whole story? Under NCLB’s strict AYP application, it is possible, if not likely, for some schools known as high-performing schools to not meet their AYP goals and be considered failing. There are several possible reasons why this is so. First, it may be because all scores, including scores in each subgroup, must contribute to each school’s overall score. Second, it also may be because schools that perform at a high level do not have as much of a margin for improvement than the lower-performing schools and therefore may not make the gains necessary to achieve AYP.
Many politicians and education leaders recognize that there are flaws in the NCLB approach, and over the past four years, they have worked to have Congress rewrite the law. Reauthorization efforts have stalled, however, leaving NCLB intact and a legislative overhaul will not likely occur during this election year. Instead, with U.S. Secretary of Education Arne Duncan leading the way, the administration has worked on an alternative plan for states by accepting applications for waivers from NCLB, a program known as ESEA Flexibility.
The Future of NCLB
In the fall of 2011, President Obama announced that the Department of Education would provide states the opportunity to apply for a waiver from certain requirements of NCLB. Calling NCLB “broken” and citing Congress’s failure to fix NCLB through the reauthorization process, the federal government outlined a path for states to enjoy greater flexibility and be more able to carry out reforms designed to improve student achievement without all of the restrictions set forth in NCLB.
Many of the principles touted at the passage of NCLB remain central to the administration’s current goals for education. It is the approach that is different.
ESEA Flexibility allows states to avoid prescribed responses for failing to meet AYP and ultimately the goal of universal proficiency by 2014, in exchange for states undertaking certain statewide reforms. The administration’s approach of bargaining with states to encourage local reform echoes the administration’s bargain with states in its “Race to the Top Initiative,” where additional grants were provided to those states that agreed to undertake major reform efforts. Below are some of the highlights of the ESEA Flexibility initiative.
High Standards for Academic Achievement
One of the many criticisms of NCLB is that the law allowed each state to define “proficiency.” This, however, means that standards from state to state could be vastly different. It also provided states with an incentive to set the academic bar too low so that these states could meet their AYP and “proficiency” goals more easily. In its explanation for the need for ESEA Flexibility, the Department of Education stated:
In many states, parents are being told that their children are proficient based on a low bar. Many of them are being lied to because their children aren’t really being prepared for college and career.
U.S. Dep’t of Educ., What ESEA Flexibility Means for Students, Teachers and Parents: Answering the Public’s Questions (Sept. 2011).
ESEA Flexibility attempts to provide answers to those criticisms. States that applied for a waiver had to show that their plan incorporated “College and Career-Ready Expectations for All Students.” The administration has approved waivers for states that have adopted the Common Core state standards. States that are Common Core states have the option of (1) collaborating with the state university system to verify that the standards are sufficiently challenging for students and will prepare students for college-level work or (2) working with other states, similar to the approach taken by Common Core standards, to develop research-based standards that have been determined to prepare students for college or the workforce.
The NCLB accountability provisions solely relied on testing to measure progress toward the ultimate goal of “proficiency.” By emphasizing testing, some unintended consequences resulted, such as (a) narrowing the curriculum to focus on those areas that are being tested; (b) placing greater weight on core skills such reading, writing, and math to the exclusion of other subject areas and other skill areas, such as critical thinking and problem solving; and (c) also causing teachers to “teach to the test.” In one disturbing case, eighty-two educators in the Atlanta Public Schools confessed to cheating in the administration of Georgia’s Criterion-Referenced Competency Test, and ninety-six others were implicated in the scandal. Patrik Jonsson, America’s Biggest Teaching and Principal Cheating Scandal Unfolds in Atlanta, Christian Sci. Monitor (July 5, 2011).
And, of course, poor performance by students triggered the interventions used with schools and districts that failed to make AYP, including the possibility of a state takeover of the school district. Considering the estimated number of “failing” schools in 2011, the wisdom of the “one-size-fits-all” approach of NCLB, after nearly a decade later, is certainly called into question.
Under ESEA Flexibility, states are allowed to design their own accountability systems. Testing and accountability remain a focus; however, states can combine test scores with other measures to evaluate student and school progress rather than rely on test data alone. In addition, ESEA Flexibility does not require schools to emphasize individual subgroups, as required by NCLB. Certain states that have filed waiver applications have addressed the achievement gap by creating one super-subgroup, instead of separate subgroups. The expectation is that by allowing other measures to be considered and by grouping subgroups together, the “failing” label will not be as prevalent as it is under NCLB, but student progress will be achieved.
The changes to the subgroup approach will be watched carefully by civil rights groups. Holding schools accountable for the performance of at-risk groups was one of the hallmarks of NCLB. There is concern that using the super-subgroup approach or watering down the accountability for the performance of these groups will turn back the clock to the days when the subgroups were hidden among a larger student population. On the flip side, however, under NCLB, if there was not a critical mass of students in a particular subgroup, schools were not held accountable for a subgroup’s performance. With a super-subgroup approach, it is more likely that all subgroup students will be captured and scores will be reported.
With respect to interventions, the top-down approach of NCLB is waived through ESEA Flexibility, and the states are left to develop their own systems of differentiated recognition, accountability, performance incentives, and differentiated incentives. Some states may elect to continue to employ some of the NCLB interventions or some modified version of the graduated approach, while some states may use a more targeted approach to intervention. Either way, schools that rank among the lowest-performing schools could be identified as “priority schools” and be subject to three years of meaningful intervention based on certain “turnaround principles.”
Schools that have the greatest achievement gaps or have certain subgroups that are the farthest behind could be identified as “focus schools” and be subject to interventions that address the persisting gap. The interventions may include publicly supported tutoring or offering school choice, which are similar to interventions currently required by NCLB. Schools that make the most progress or have the highest performances will be identified as “reward schools” and will be financially rewarded for their performance.
Under NCLB, teacher quality focused on the educational background and certification of teachers while professional development focused on what would be necessary to maintain certification. With ESEA Flexibility, the administration has added layers to improve teacher quality by requiring that states adopt teacher evaluation systems that incorporate the use of “multiple measures” of teacher progress. These multiple measures may include principal observations, peer review work, portfolios, and student work. The idea is to use the evaluation process to improve teacher performance by giving consideration to student work and by bringing other educators into the classroom to see the teacher in action and provide feedback.
As of now, only ten states—Colorado, Florida, Georgia, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, Oklahoma, and Tennessee—have received ESEA Flexibility waivers. It is expected, however, that other states will follow suit in the upcoming months. Education is in perpetual motion—there are always new studies that drive reform efforts and shape the policies and law at the local, state, and federal level, all in the name of improving education. In this situation, we will have an interesting dichotomy between the states that are taking the ESEA Flexibility path and the other states that are continuing to live under NCLB as it stands today. Which states will ultimately fare better? Only time will tell.
Andrea L. Bell is a partner at Stoneman, Chandler & Miller LLP in Boston, Massachusetts. She represents public school districts across the Commonwealth in such areas as labor and employment, special education, policy development, and student discipline.
Katie A. Meinelt is an associate at Stoneman, Chandler & Miller LLP in Boston, Massachusetts. Her practice concentrates on representing public school districts and charter schools in the field of education law, including special education, student discipline, labor and employment, and other school-related matters.