Unruly Crew

Federal legislation can move the states quite far, even if they don’t ally comply with the letter of the law.
Illustration by Greg Clarke.

The No Child Left Behind Act, signed by President Bush in January 2002, builds squarely on the framework of standards-based reform established in Goals 2000 and the 1994 reauthorization of the Elementary and Secondary Education Act (ESEA). These two pieces of legislation, proposed by President Clinton, forged a new federal-state partnership to implement in every state an accountability system based on challenging standards and aligned assessments for all students. They also targeted federal resources to high poverty schools and provided states, districts, and schools with greater flexibility in the use of federal resources in order to achieve results.

While there are substantial continuities between the Clinton and Bush reforms, there are also some important differences that will bear significantly on the implementation challenges now facing states and the federal government. The 1994 legislation recognized that states had been leading the education reform movement for more than a decade, and it sought to bring the federal government into line with the standards-based reforms being formulated at the state level. Together Goals 2000 and the 1994 ESEA reauthorization provided a broad and flexible framework for state action, and deliberately placed considerable trust in states to work out the details themselves.

In contrast, the No Child Left Behind Act reflects significant impatience in Washington with the pace of state-led improvement and, in particular, with the slow pace at which states have instituted tough accountability systems. The legislation contains new and highly prescriptive testing and accountability requirements for states. It requires more testing and more frequent testing, sets a 12-year timetable by which every state and every school must bring every student and every demographic subgroup of students up to proficiency, and spells out in more detail than previously the consequences for schools that fail to make adequate progress toward this goal.

These provisions substantially shift the historic balance of federal vs. state control over education. They combine new federal dictates over the timing of improvement with continued state control over the standards for improvement, perhaps providing perverse incentives for states to lower the academic standards they recently adopted. In addition, most analysts believe that the new definition of “adequate yearly progress” included in the statute will result in a substantial proportion of the schools in each state immediately being identified as failing, due as much to the statistical properties of the definition as to the quality of the schools in question.

Implementation of the new law will therefore pose significant challenges to the states and the federal government. States will be looking for ways to meet new federal requirements without seriously disrupting their own standards-based reforms. The U.S. Department of Education will be working to ensure full compliance with the new requirements, but realistically must also provide states with enough flexibility to adapt the requirements to the states’ varying circumstances.

Requirements for states to implement systems of standards, assessments, and accountability have been the central feature of federal elementary and secondary education programs since 1994. They have also been the most politically difficult to craft and implement. Their successful implementation this time will depend on the willingness and ability of federal and state officials to negotiate a complex set of technical, political, and organizational challenges-and a good deal of luck.

The actions that state and federal officials take to address these requirements will determine whether they provide the right pressure to drive needed changes in state and local practice, prove to be utterly unworkable, or are relegated to the margins of state and local improvement strategies. The experience of implementing the 1994 requirements can shed some light on the choices facing federal and state officials this time around.

The Limits of Enforcement

It is often said that the federal government has little power when it comes to education reform because it kicks in less than 10 percent of the total cost of K-12 education. The 1994 reforms belie this notion; in fact, federal legislation can move the states quite far, even if their actions don’t all comply with the letter of the law. In 1993, at the onset of the Clinton administration, only a handful of states were developing standards and aligned assessments and preparing to use them as the cornerstone of their education reform strategy. Now every state is organizing its K-12 system around standards-based reform. The point here is simple but important: much of the federal impact lies in the overall direction it provides; it is not solely a result of the specific strings tied to federal funds. Significant changes in existing federal programs frame the terms of the deliberations that go on in every state and community. They mobilize supporters and create an expectation that states will act in a manner consistent with the new law.

Still, that doesn’t mean states will walk in lockstep with federal mandates. States won’t implement requirements that are unworkable or meet deadlines that can’t be met, no matter what the law says. The 1994 law required states to establish content and performance standards (the cut scores that indicate different levels of mastery on the assessments) in reading and math by the 1997-98 school year, and final assessments aligned with the standards by the 2000-01 school year. While most states met the deadline for content standards, almost none met the deadline for performance standards. States found it almost impossible to develop, define, and describe performance standards in the absence of the assessments that made them real and concrete. As a result, the Department of Education agreed to waive the deadline for performance standards.

This was the right decision, but it wasn’t without consequence. Freely granted waivers contributed to a belief that the department would not strictly enforce any of the law’s provisions and may therefore have undermined state compliance over time.

The 2000-01 deadline for having a testing system up and running was workable if a state started development work soon after the law was enacted. However, many states delayed the development of assessments for several years. Once that delay occurred, and once a state began good-faith efforts to develop the assessments, there was little either the state or the federal government could do to speed up the process. Creating and field-testing questions, developing scoring procedures, and conducting validity and reliability studies all take time. Moreover, full compliance required significant changes in test design, administration, and reporting practices. States had to shift from norm-referenced to standards-based assessments and to end longstanding practices of excluding students with disabilities and students with limited English proficiency from the state testing, reporting, and accountability programs. As the deadline approached, a number of states clearly weren’t going to meet it despite working in good faith to complete the development process. No sanctions could speed the process at that point. The department’s response was to waive the statutory deadline and hold the state to its planned timetable. Some view these decisions as evidence of lax enforcement, but I see it as evidence of the limits of the department’s enforcement ability.

These limits will become apparent again soon because some states will not be able to meet the deadlines in the new law. For example, the results from tests administered this spring are to form the baseline for defining adequate yearly progress. However, those states that still do not have final assessments in place or that plan necessary changes in their current assessments will be unable to use this year’s results for that purpose, since they will be using different tests in a year or so.

Knowledge Counts

States failed to meet some requirements not for lack of trying, but because they didn’t have a clear sense of how to do certain things well. The best example is their setting of standards for school improvement-known in the law as “adequate yearly progress.” States vary widely in the annual progress-in terms of increases in test scores-they expect from schools. As a result, they also vary widely in the percentage of schools identified as “needing improvement.” Texas and North Carolina labeled only 1 percent and 5 percent, respectively, of their Title I schools as “needing improvement.” Kentucky and Arkansas, by contrast, applied that label to 71 and 64 percent, respectively, of their Title I schools.

One of the reasons for this is that states, and the education community overall, do not have a clear, research-based idea of how to effectively set performance or progress targets for individual schools or school districts. Some states set absolute standards for schools, others looked at improvement over time, and others used a combination of the two. Few states or educators had a clear understanding of the behaviors they were rewarding or the incentives they were providing as a result of the design choices they made. And no state had sufficient research or experience to guide it in understanding the rate of progress it could reasonably or even ideally expect a school to make.

By tightly prescribing the definition of adequate yearly progress that states must adopt, the new law eliminates most of the difficult design decisions states must make. However, states and the U.S. Department of Education must together confront substantial implementation problems in this area, because the new requirements are fraught with technical complications, will lead to dramatic increases in the number of schools identified as failing, set improvement targets that many see as unrealistic, and are no more grounded in research or experience than the standards set by most states under the old law.

Going Their Own Way

While state education agencies are responsible for implementing federal programs, in many states the governor and the legislature, not the chief state school officer and the state education agency, are in charge of testing and accountability policy. In general, legislators and governors don’t pay attention to Title I requirements; they may not even be aware of their existence. While the relevant aspects of the No Child Left Behind Act generated a fair amount of media attention, few state policymakers will give them much thought six months to a year from now-let alone by 2005 and beyond, when the new testing requirements must be implemented. Odds are that governors and legislatures in most states will continue to think they have a free hand on these issues.

For instance, the Department of Education found that the assessment systems in California, Wisconsin, West Virginia, and Alabama were substantially out of compliance with the requirements of the 1994 legislation. In each of these cases the main problem was state-level decisions by the legislatures to mandate norm-referenced tests that were not aligned with state standards. Chief state school officers in those states made clear that the legislature acted without much knowledge of or attention to the Title I requirements. Now consider that during the debate over the No Child Left Behind Act, the National Conference of State Legislatures sent members of Congress a letter criticizing the testing requirements as “an egregious example of a top-down, one-size-fits-all federal reform.” Clearly, given the deep ambivalence about the federal role in education among many elected state officials, no one should assume that state compliance will be voluntary or automatic.

Hints of future problems have already surfaced. In Michigan, for instance, the new chief state school officer recently replaced the test-focused accountability system with a new grading system that relies on a broader set of measures of school quality, including family involvement, the quality of professional development, attendance, and dropout rates, among others. Schools will receive their first “grades” in 2003, but sanctions cannot be applied until 2005. Almost none of the accountability features appear to comport with the requirements of the No Child Left Behind Act, the basic provisions of which have been known since the summer of 2001. The federal law permits multiple measures as long as those added to the state assessment program don’t reduce or change the schools identified for improvement. Interventions in low-performing schools must begin immediately, at least for those already identified under the 1994 provisions. Michigan has already identified some 80 percent of its Title I schools as needing improvement, so widespread interventions should be occurring now, not delayed until 2005. In brief, it appears that, at least in Michigan, the state’s accountability system and the Title I accountability system operate in parallel universes.

Lax Track Record

The Department of Education does not have a strong track record of monitoring compliance in ESEA programs, a problem that has spanned administrations of both parties. The department is widely viewed as impotent, since no one believes that it will ultimately withhold funds from states or local districts.

The weakness of this longstanding track record was surely compounded by both the intent of Goals 2000 and the politics surrounding its enactment and implementation. Goals 2000 was intended to help states jump-start standards-based reform, while deliberately providing states with a great deal of flexibility in the design of reform strategies and the use of federal funds. While the secretary of education was required to review and approve each state’s education reform plan, we were keenly aware that Goals 2000 provided less than 1 percent of total state education expenditures and worked hard to ensure that the peer review of a state’s plans recognized the limits this imposed. Many states understood and appreciated this approach, but others saw it as another indication that the department lacked the will for tough-minded compliance monitoring.

The political assault on Goals 2000 in a number of states (the governors of Virginia, California, Alabama, and New Hampshire refused to accept Goals 2000 funds because of the “federal intrusion” and “strings” that accompanied it), coupled with simultaneous efforts in Congress to abolish both Goals 2000 and the Department of Education, also contributed to a widespread view that tough enforcement would be a particularly hazardous course of action for the department to pursue. Ironically, many of those who pressured the Education Department to give states a free rein during the 1990s have now championed a much more intrusive set of requirements a decade later.

Laboratories of Democracy

Still, in its effort to ensure compliance the Department of Education must avoid choking off creativity. As states work to address these issues, they need the flexibility to take advantage of emerging solutions and opportunities and to address problems not foreseen in, or perhaps created by, the legislation. Here are a few areas where the department should not let compliance get in the way of quality and innovation:

• The requirements for adequate yearly progress and school improvement apply equally to high schools and elementary schools, yet it is not clear that they make as much sense at the secondary level. For example, states with high-stakes high-school graduation requirements must find effective ways to intervene in high schools with high failure and/or dropout rates, even if the percentage of students passing the test increases significantly each year. A school where the pass rate goes from 65 to 75 percent in a year may be making exceptional progress, but it is hardly adequate if a quarter of the students can’t meet the graduation requirements. Consequently, many states will need to find different yardsticks for judging the performance of high schools and more powerful and swift intervention strategies than the graduated series of steps provided for in the statute.

• Online assessment appears to offer many advantages for states, teachers, and students. It holds the promise of immediate results and feedback so that the tests can be used to improve teaching and learning for the students who take them. They can be administered at different times, enabling students to take them when they are ready to demonstrate that they have met the standards, rather than on a single “one-size-fits-all” testing date. They may be customized for individual students, enabling them to take fewer questions that are better geared to their level of performance, potentially increasing both the efficiency and the diagnostic value of the tests. Yet Education Week reported in February that department officials have indicated that Idaho’s approach to online testing may not meet Title I requirements. How this pans out will depend on the particulars of the Idaho situation, but in general the Title I requirements must not become a barrier to the necessary development and experimentation of online testing in the states.

• The annual testing in grades 3 through 8 required by the federal law will make it possible for states and districts to use “value added” approaches to measuring the performance of schools. It isn’t clear whether this approach is necessarily superior to the cohort approach the law builds in to the definition of adequate yearly progress, but it certainly deserves serious consideration. In any event, value-added analysis would almost certainly identify as low performing a set of schools different from those the prescribed approach might identify, and thus it may not be permissible under the statute. The Title I requirements should not be a barrier to sorting out the most appropriate approaches to identifying low performing schools.

The bottom line here is simple. We don’t yet know all that we must in order to translate the principles guiding No Child Left Behind into effective policy. Yet the specific requirements appear to leave some approaches off the table, even if they may turn out to be more promising. While the Education Department has a clear responsibility to ensure that every state complies with the new requirements, it also has a responsibility to help states find the most effective approaches to meet the overall purpose of improving achievement.

In the end, even 100 percent compliance will not be enough to bring about adequate gains in student achievement. Translating tougher accountability measures into large-scale achievement gains for all students will require substantial investments at the federal, state, and local levels. States and districts will need to recruit, prepare, and retain talented teachers and principals and support them with high-quality professional development, curriculum and instructional materials aligned with standards, and the tools to support data-based decisions. It will also require substantial investments to give students the opportunities to learn, including smaller classes, modern buildings, 21st-century technology, and extended learning opportunities through after-school and summer programs. The key here is that compliance is a means, not an end. The end is excellence.

Michael Cohen is a senior fellow at the Aspen Institute and the former assistant secretary for elementary and secondary education in the Clinton administration.

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