The scene in January 2002 was a civics text come to life. Flanked by jubilant members of Congress and standing in front of a cheering crowd, President George W. Bush declared the start of a “new era” in American public education with the signing of the No Child Left Behind Act. The new law represented a sweeping reauthorization of the Elementary and Secondary Education Act, which was originally enacted in 1965 as part of Lyndon Johnson’s War on Poverty–and has since been reauthorized every four to six years, usually under a catchy new banner. Its signature program, Title I, funnels nearly $12 billion annually to schools to support the education of disadvantaged children. “As of this hour,” said the president, “America’s schools will be on a new path of reform, and a new path of results.” Sen. Edward Kennedy, D-Mass., shared the president’s enthusiasm. “This is a defining issue about the future of our nation and about the future of democracy, the future of liberty, and the future of the United States in leading the free world,” the legislative icon had proclaimed on the Senate floor. “No piece of legislation will have a greater impact or influence on that.”
While No Child Left Behind does mark an unprecedented extension of federal authority over states and local schools, the law’s accountability measures were not, for the most part, newly developed in 2001. No Child Left Behind was the cumulative result of a standards-and-testing movement that began with the release of the report A Nation at Risk by the Reagan administration in 1983. The movement gained momentum with the 1989 education summit in Charlottesville, Virginia, at which President George H. W. Bush and the nation’s governors set broad performance goals for American schools. By 1991, President Bush’s “America 2000” proposal included voluntary national testing tied to “world class” standards, a provision that led to the bill’s death by Republican filibuster. In 1994 President Clinton signed into law “Goals 2000,” which provided grants to help states develop academic standards.
The sea change came with the 1994 reauthorization of the Elementary and Secondary Education Act, which signaled a nationwide commitment to standards-based reform. The reauthorization required states to develop content and performance standards for K-12 schools. Congress also adopted the notion of “adequate yearly progress” that later became the linchpin of accountability in No Child Left Behind. States were required to make “continuous and substantial” progress toward the goal of academic proficiency for all students. However, there was no deadline for doing so; indeed, consequences were largely absent from the law. State standards were supposed to be in place by 1997-98, assessments and final definitions of adequate yearly progress by 2000-01. But the administration never withheld funds from states that failed to meet these timelines. The Clinton administration, concerned that cracking down would rile the Republican Congress, focused on providing states with assistance in the development process. As of the original 1997 deadline, the American Federation of Teachers found that just 17 states had “clear and specific standards” in English, math, social studies, and science. Nevertheless, the 1994 reauthorization jumpstarted the process of developing standards and tests in most states.
By the mid-1990s, then, the themes of No Child Left Behind were already on the table. In many ways the final ingredient was President George W. Bush, who persuaded some Republicans to accept proposals that they had rejected just one session of Congress earlier and tacked with Democrats toward common ground. In so doing, however, agreements in principle sometimes papered over real disagreements regarding policy particulars. This meant that many key issues in No Child Left Behind were postponed until implementation. As a result, the Education Department’s rule-making process and its enforcement practices will be vital in determining how seriously states and schools will take the new requirements.
The Late Clinton Years
The lesson that many policymakers and analysts took from the 1994 reauthorization was that federal dollars needed to be tied more explicitly to measurable gains in student performance. In April 1999, Andrew Rotherham of the Democratic Leadership Council’s Progressive Policy Institute summed up the key elements of this view in an influential white paper. In it he wrote that Congress, to rectify the Title I program’s status as “an undertaking without consequences” for everyone except students, should set performance benchmarks and terminate aid to districts that failed to meet them. The Elementary and Secondary Education Act’s 50-plus separate, categorical grants would be reduced to five broad “performance-based grants” funding the Title I compensatory-education program, teacher quality, English proficiency, public school choice, and innovation.
As the next reauthorization cycle rolled around, conservatives were supportive of the idea of state flexibility combined with performance goals, but they favored an even broader block grant approach that would give states enormous discretion over how they spent federal education funding. This would prove to be a major sticking point, as Democrats tended to oppose broad block grants that threatened programs with specific purposes. The proposal that reached the Senate floor included a pilot block-grant program giving spending discretion to 15 states. It also held kernels of the language that would find its way into No Child Left Behind two years later. It still allowed states to define what adequate yearly progress meant, but the state plans had to ensure that each racial, ethnic, and economic subgroup of students would be proficient within ten years. Any school identified as “needing improvement” was required to offer students the chance to transfer to another public school and to pay the transportation costs. This was to happen after two years of failing to make adequate progress.
The bill wound up satisfying no one. Liberal Democrats sought a substitute amendment protecting existing programs from block grants and pushing President Clinton’s triumvirate of class-size reduction, school construction, and teacher training. New Hampshire senator Judd Gregg and other conservative Republicans demanded a far larger block grant and a voucher program that would be further-reaching than the public-school transfer provisions in the bill. New Democrats, led by Connecticut senator Joseph Lieberman, pushed a modified block-grant proposal. Like Rotherham’s Progressive Policy Institute agenda, it created five major grants, raised overall funding by $35 billion over five years (targeted to poor school districts), kept the class-size reduction program, and added $100 million for public school choice. In the end, the New Democratic proposal got just 13 votes. As a long list of riders on unrelated issues like gun control bogged down floor debate, both sides decided to take their chances on the imminent presidential election.
Thus, for the first time in its history, the Elementary and Secondary Education Act was not reauthorized on time. Instead, the old law was simply rolled over for an additional year. Rotherham complained, “At the national level, the debate about how to address education has broken down along predictable and partisan lines” and urged that the New Democratic proposal be the basis for the new administration’s first move on education reform. Surprisingly, in a way it was.
Add One “Compassionate Conservative”
In 1999 Texas governor George W. Bush was on the presidential campaign trail, pitching himself as a “compassionate conser-vative.” The compassion was for students trapped by what Bush frequently called “the soft bigotry of low expectations.” The conservatism lay in maximizing parental choice and local spending flexibility. However, Bush also envisioned a strong national role in education policy. This put him at odds with Republicans who cared mainly about keeping the national government out of local schools. In fact, Bush had to lobby to eliminate language calling for the abolition of the Department of Education from the 2000 Republican platform.
For Bush, focusing on education had potential risks, given its association with voters as a “Democratic” issue. In July 1999, for example, a Pew Research Center poll found that by a margin of 52 to 29 percent, voters trusted Democrats to do a better job on education. The very title of the Bush campaign position paper on the topic, “No Child Left Behind,” was cribbed from the liberal Children’s Defense Fund, whose (now trademarked) mission is “to leave no child behind.”
However, education reform was a major issue in Texas, and Bush realized its potential for a Republican presidential hopeful. As governor, he had promoted the state’s program of annually testing all students in grades 3-8 and rating schools based on their performance on the Texas Assessment of Academic Skills (TAAS) exams. On the campaign trail he touted steadily improving TAAS scores, especially among black and Latino students.
Developing these themes for the campaign was a small policy staff that included Alexander “Sandy” Kress. Kress was a Dallas attorney, a school board member who had worked with Bush on Texas’s accountability statutes–and, as Bush liked to point out, a Democrat and Democratic Leadership Council member. As such, Kress was familiar with Rotherham’s paper and the various 1999 bills and borrowed widely from them.
Soon after Bush’s victory was sealed by the Supreme Court, the president-elect invited about 20 members of Congress to Austin to discuss education policy. Along with Republican leaders–Boehner, Gregg, Sen. Jim Jeffords of Vermont–New Democrats such as Sen. Evan Bayh, Rep. Tim Roemer of Indiana, and Georgia senator Zell Miller were prominently featured. So was Rep. George Miller, D-Calif., a major education player in the House whom the president was soon calling “Big George.” Ted Kennedy was conspicuously absent, illuminating the president’s intention to seek a coalition of Republicans and New Democrats. Warned that pushing hard on private school vouchers would end that prospect, Bush gave his reassurances: vouchers were not a make-or-break issue.
As Congress opened its doors in January 2001, “No Child Left Behind” emerged, not as a piece of draft legislation but as a 30-page legislative blueprint. The proposal, released just three days after the inauguration, closely tracked Bush’s campaign agenda. It included a broad block-grant program providing new spending flexibility to “charter states,” and it consolidated categorical grants into five areas of focus, modified slightly from the New Democrats’ proposal. It called for the annual testing of students in grades 3-8 and the release of state and school report cards showing the performance of students disaggregated by ethnic and economic subgroups. States would be required to participate in the National Assessment of Educational Progress (NAEP) each year as a double check on the results from state assessments, and schools receiving Title I compensatory-education funds would be required to show that disadvantaged students were making adequate yearly progress. The proposal did not spell out the requirements for “corrective action” when a school or district continued to fail, but public school choice and, later, “exit vouchers” toward private school tuition or for supplemental services were to be included. Schools and states that succeeded “in closing the achievement gap” would receive funding bonuses from the federal government; those that did not would lose funding for administrative operations.
The blueprint, in short, borrowed liberally from several competing proposals made in the waning years of the Clinton administration. Bush “essentially plagiarized our plan,” one Lieberman aide told the Washington Post, but others in Congress could have made the same claim. What is called plagiarism in academia wins political points in Congress; the Bush proposals were well received on Capitol Hill.
In Texas, Governor Bush had found success in producing broad statements of principle instead of legislative drafts. Perhaps remembering the 1993 health-care debate–when majority Democrats insisted that the Clintons produce a complete bill, then sniped at its fine print until it sank–Republicans did not demand more from Bush. The administration had thus set itself up to claim credit at the end of the process while Congress squabbled over the specifics. As one Democratic staffer put it, “This was great political strategy. When you put out legislation, then you’re fighting for colons and sentences and subheadings. The White House had orders: don’t get bogged down in details.”
Lawmakers, of course, thrive on detail, notwithstanding the devil’s reputed place of residence. But as the stalemate in the previous Congress made clear, reauthorizing the Elementary and Secondary Education Act would require building bipartisan coalitions; after all, the present Congress was even more closely divided. Here the Bush administration’s shrewd brand of alliance politics enabled it to avoid a partisan showdown in the Senate’s education committee. Kress, the president’s point man on No Child Left Behind, was dealing mainly with Gregg, who clearly called the Republican shots. Meanwhile, he also cultivated the New Democrats, using those discussions to lure Kennedy to the table. While Kennedy had been left out of the Austin summit in December, the senior senator was a consummate dealmaker, expert in the issues and perturbed by the prospect of a major bill in his bailiwick moving forward without him. Bush and Kress began to woo him; Kennedy, for his part, “bought himself into the game” by agreeing that some form of program consolidation and block-grant flexibility, along with supplemental services portability, could be part of the Senate bill.
The result was a three-way coalition among conservative Republicans, New Democrats, and the Democratic regulars. Jeffords’s momentous decision in late May to quit the Republican caucus, throwing the Senate to the Democrats, had little impact on the education bill. Kennedy’s decision to deal with the White House had made him a major player already.
The coalition was almost derailed in late April over the definition of adequate yearly progress, prompting what one Senate staffer colorfully called “hell week.” Governors had been pressuring the White House to weaken the bill’s requirement that states make adequate yearly progress. As it stood, the Senate language required annual progress by each individual subgroup of students in such a way that all would become proficient within ten years. But states were worried that too many schools would be identified as failing–an expensive, and embarrassing, label. Jeffords’s staff fueled this with analyses claiming that a majority of schools, even wealthy ones in states that invest heavily in education, would “fail” under the bill’s formula.
Not everyone agreed that these charges were accurate. Whatever their validity, though, they had clear political utility. The governors (and some committee members) leaped at the chance to gut the disaggregation and testing requirements of the bill. And Bush’s negotiators seemed surprisingly sympathetic. After cutting out Jeffords for months, “suddenly Kress was backing up Jeffords’s staff.” The new language required at least a 1 percent improvement in test scores each year per group. However, progress would be judged over a three-year period and the scores of the lowest achieving students would be weighted more heavily, giving schools credit for closing the achievement gap.
The new formula was attacked as unworkable by states and unfair by civil rights groups. Kress didn’t try very hard to defend the compromise, calling it “Rube Goldbergesque”–but settling the adequate yearly progress debate for the present kept the bill moving forward.
In the meantime, the challenge was to hold on to the majority Democrats who hoped to boost funding. By wide margins senators agreed to $181 billion in special-education funding over ten years; they also agreed to boost authorized spending on compensatory education by $132 billion over the same period. Ultimately, 89 programs were included in the Senate version of the bill (up from 55 in existing law and 47 in the House bill), with a price tag of $33 billion (compared with $19 billion in the president’s plan and $23 billion in the House’s). “A function of being on the floor too long,” moaned a GOP aide, as debate reached seven weeks and 150 amendments.
The members of the bill’s formulation group, however, had pledged to suppress amendments that cut at the core of the basic deal. For example, the late Paul Wellstone, a Democrat from Minnesota, failed in his attempt to defer the new annual testing requirements unless funding for compensatory education was tripled; Kennedy, Lieberman, and Bayh all voted against it. A small voucher pilot program was also defeated, 41-58, with 11 Republicans in the negative. Finally, on June 14, the bill was resoundingly approved, 91-8.
Like Gregg, John Boehner, the new chairman of the House Education and the Workforce committee, was an unlikely convert to an increased federal role in education, having previously urged elimination of the Department of Education. But Boehner was dedicated to cementing Bush’s disputed electoral victory with an undisputed legislative success, and he knew how to count. That is, he knew there were 30 to 40 House Republicans who would never support the sort of testing regime Bush had promised, especially without vouchers. Given the slim Republican majority in the House, the need for Democratic votes was simple fact. And for Democrats to support annual testing, the Republicans would need to give ground on vouchers and block grants.
An emblematic compromise in the House created “transferability,” which shifted spending discretion across the many different programs not just to states but to school districts as well. No one (outside the New Democrats, who proposed it) truly liked this; but Boehner was worried that planned efforts to add even the Senate’s pilot version of a block-grant program would scare off Democrats and scuttle the bill. The first committee roll call stripped vouchers from the draft; markup then had to be suspended so that Boehner, with Kress, could hold a closed-door meeting to mollify committee conservatives, promising a floor vote.
Boehner had achieved bipartisanship, as promised–the final committee vote was 41-7–but with a rather Democratic flavor. In general the president had no desire, as Undersecretary of Education Eugene Hickok later put it, “to sacrifice accountability on the altar of school choice.” This naturally upset those who felt that accountability required choice. GOP dissenters complained that “the bill . . . contains very few provisions of the president’s original proposals.”
The floor debate put those dueling definitions on display. Rep. Tim Roemer, D-Ind., urging members to vote against a voucher amendment, argued, “This amendment has no accountability in it. We take the money with the voucher from the public school to a private school, and then there is no accountability there. No test, no trail, no nothing.” Majority leader Dick Armey, R-Texas, retorted, “We do not ask the Catholic schools to be accountable to the government, we ask them to be accountable to the parents.”
In the end, the committee bill passed the House largely intact. The attempts to add vouchers were defeated; so too, after intensive White House lobbying, was a coalition of the far Left and far Right (led by Barney Frank, D-Mass., and Peter Hoekstra, R-Mich.) seeking to eliminate annual testing. The ultimate vote was lopsided 384-45, with Republicans making up three-quarters of the “no” votes. Still, holding a skittish membership together had been no easy task. And given the differences between the House and Senate, the task was far from over.
During the summer of 2001, No Child Left Behind came under fire from all sides: from local officials who didn’t want national norms; from teacher unions that didn’t want mandatory testing; and from conservatives who thought that with vouchers dead the rest of the bill might as well be. The National Conference of State Legislatures called the bill’s testing provisions “seriously and perhaps irreparably flawed.” And new reports argued that both the House and Senate provisions for adequate yearly progress would result in a large number of schools’ being identified as failing. On Capitol Hill, House Republicans had calculated that with a Republican Senate they could gain back their concessions in conference, but now that chance was gone. Democrats began to wonder too: after all, didn’t the president need this bill more than they did?
The conference committee, then, had to repair the bill’s bipartisan armor–and bridge some 2,750 divergences between the House and Senate versions. It would not merely revise but rewrite many provisions that had been pushed through with the promise of a later “fix,” maximizing the remarkable degree of discretion delegated to congressional conferees.
During the summer recess, staff members representing all 39 members of the conference–the Senate, to represent its coalition’s various blocs, had named an astounding 25 conferees–met daily to hammer out more than 2,000 agreements. Even September 11 and the anthrax scare did not push No Child Left Behind off the agenda.
With periodic presidential exhortation, accountability provisions slowly took shape under the watchful eyes of the “Big Four”: Boehner, Miller, Kennedy, and Gregg. Language providing additional targeting of compensatory education funds to poor districts was approved. A pilot block-grant program was grafted to “transferability.” Final supplemental services language was developed. Extra money for charter schools was found (though money for special education was not; indeed, most of the Senate’s funding levels were slashed). Announced last, or nearly so, were the adequate yearly progress requirements. While the conference’s basic stance on this was in place by late September, it was kept quiet to allow additional tinkering and to avoid interest group pressure.
The final language required all students, in all groups, to reach proficiency within 12 years. However, it allowed districts to average results across three years. No punishment would be imposed on states for low test scores. And though Bush endorsed “an objective check on state accountability systems” (specifically naming NAEP), this issue was settled by requiring states to participate biennially in the 4th- and 8th-grade NAEP exams, but prohibiting penalties based on the states’ NAEP performance. These changes, though hardly satisfying all critics, made the final version more workable than either the House or Senate versions.
At once numbingly detailed and comfortably vague, the conference report was adopted by the House and Senate in December, with opposition again limited to an odd amalgam of the discontented far Left and far Right. The process, said Roemer, had “brought the middle together, and held it.” An impressive legislative victory was in place.
The Implementation Challenge
Many factors contributed to No Child Left Behind’s passage: the tentative alliance between moderate New Democrats and much of the Republican caucus; the need for the newly elected president to succeed on a campaign priority; Bush’s willingness to embrace Democratic positions and leaders; and the media attention that resulted from the debate’s “man bites dog” quality-a Republican president pushing a supposedly Democratic issue.
Cooperation among legislators was made possible by the willingness to move past divisive issues–itself possible because the conversation was newly framed by a common vocabulary centered on “accountability.” Accountability was hard to be against, but elastic. It served as a way for Democrats to talk about reform without simply talking about increased spending; it was also a selling point for additional resources, since ordinarily skeptical Republicans could console themselves that the new funds went to a system newly worthy of investment. While accountability was unproved as a reform tool, there was also no conclusive evidence that it did not work. In the absence of empiricism, aphorism took hold, as with Secretary of Education Rod Paige’s athletic metaphor: “If you want to win the football game, you have to first keep score.” How one defines accountability matters greatly in practice, but it proved to matter far less in politics-in other words, to the term’s usefulness in providing a unifying theme for the No Child Left Behind debate that could garner broad agreement in principle even when policy specifics proved elusive. The latter could be compromised or, as often happened, deferred from campaign to committee to floor to conference to implementation. But when the bill became law in 2002, it could be deferred no longer.
The compromises of No Child Left Behind avoided both extremes of the policy spectrum. Democrats, for example, resisted granting wide discretion to local districts on the one hand and to parents on the other. The number of categorical programs did not diminish significantly. In principle, public school choice has been greatly expanded, but it is not clear how well this will serve students in far-flung rural districts or in urban systems where most or all of the public schools are identified as needing improvement. And experimentation with voucher programs will have to await the baby steps of the supplemental services program and continued local efforts, albeit encouraged by the Supreme Court’s June 2002 Zelman decision.
Meanwhile, Republicans resisted efforts to require strong state accountability to the federal government. The first bullet point in the House fact sheet on the conference report trumpeted, “No National Tests.” There are no consequences linked to NAEP participation or for states that fail to attain adequate yearly progress. The text of the law left the states to set their definition of proficiency and to use their own assessments to measure it, leaving open the possibility that states will lower their expectations.
Both sides ducked the fact that the federal government is just a “7 percent investor” in a huge company owned by someone else, as Kress put it, referring to the fact that states and localities fund 93 percent of K-12 public education. This limits the degree of change the federal government can leverage. Even if it were willing to use its sticks, the Department of Education has small sticks to brandish. The law’s titular commitment to the success of every child made it hard to compromise on the adequate yearly progress requirements, but this does not make it feasible policy. During the next reauthorization, scheduled for 2007, a lower figure (90 percent?) may be substituted at the halfway point of the 12-year countdown to prevent states from lowering proficiency standards.
Of course, the passage of legislation does not end the story. The political compromises written into No Child Left Behind make the regulatory process crucial, even determinative, and here the secretary and the department are key actors. In a series of congressional hearings in 2002, the department touted its progress and promised to hold firm on enforcement in the face of skeptical Democratic questioning.
State flexibility has been granted in some areas. Draft rules on testing released in March 2002 indicated that states would be allowed to use different tests in different areas, potentially undercutting their comparability. The department also signaled a hands-off stance on judging the quality of state standards and assessments. The rules released in July 2002 allowed states to use either criterion-referenced tests linked to state standards or norm-referenced tests that measure how students perform compared with their peers, modified somewhat to reflect state standards. It remains unclear whether states will be forced to develop standards-driven tests or whether “augmented” commercial exams will be ultimately acceptable.
This flexibility suited the Bush administration’s interpretation of the law’s intent; in other areas, that interpretation was more stringent. In July 2002, for example, the department listed some 8,600 schools that had failed to meet state standards for two consecutive years. Under No Child Left Behind, students in those schools were to be offered the chance to attend a better-performing school in the district starting in September. In an October letter to state school chiefs, Paige warned that state plans to “ratchet down their standards in order to remove schools from their lists of low performers” were “nothing less than shameful.”
The final regulations were not released until late November 2002 in advance of a January 31, 2003, deadline for the submission of preliminary state plans to achieve adequate yearly progress toward full proficiency. While states remained worried that too many schools would be identified as failing and asked for additional leeway, the department continued to take a tough line. The first round of state plans (produced on time, though some were incomplete) varied wildly. Their specifics depended in large part on how stringently states defined proficiency and how closely the new law tracked existing requirements. Some states proposed complicated statistical techniques for gauging school progress; others backloaded their predicted progress, with far greater gains toward the end of the 12-year timeline. Most states, noted a January report by the Education Commission of the States, had a long way to go. And by spring, despite Paige’s warning, many states were trying to rework their standards to downgrade the definition of proficiency.
The early outcomes of the rulemaking process seemed to indicate the Bush administration was holding the line on its substantive priorities such as choice and assessments, giving the president a clearer legislative victory than it initially appeared. On the law’s first anniversary, Bush declared, “We can say that the work of reform is well begun.” George Miller, however, accused the administration of implementing regulations in a manner “inconsistent with the way the law was approved by Congress” and called Bush a “truant from sound education policy.”
This opening chasm means many questions remain as the story continues. How will the secretary balance state experimentation and national rigor? Budget issues are a prominent part of the equation: while Democrats were satisfied with the funding levels provided in fiscal year 2002, this was not true for fiscal 2003 or 2004. Complicated by revenue shortfalls and budget cutbacks in many states, the funding/mandate balance promises to be an ongoing source of friction. Furthermore, as the scene shifts to the states and the bureaucracies, interest groups–surprisingly dormant in the narrative above–may reassert themselves. One target may be the testing regime itself, if states (and key suburban voters) continue to gripe.
John Adams once observed that “the laws are a dead letter until an administration begins to carry them into execution.” More than two centuries later, that is how government still works, even in the textbooks. For the students in America’s public schools, the ways in which No Child Left Behind is implemented will determine how government works in real life.
Andrew Rudalevige is assistant professor of political science at Dickinson College. This essay is adapted from Paul E. Peterson and Martin R. West, eds., No Child Left Behind? The Politics and Practice of Accountability, forthcoming from the Brookings Institution Press.