No Child Left Behind Act

This policy brief analyzes:

Testing and Adequate Yearly Progress
Schools "In Need of Improvement" or Subject to "Corrective Action"
"Highly Qualified" Teachers and Paraprofessionals
Parent and Community Involvement
Additional Resources, Funding, and Cost Estimates
Useful Resources on NCLB

The Promise and Challenges of the "No Child
Left Behind Act"

By Wendy Lecker
Prepared September 2005

I. Introduction

In December 2001, Congress passed a sweeping reauthorization of the Elementary and Secondary Education Act that introduces a vastly expanded federal role in K-12 education, and called it the "No Child Left Behind Act" ("NCLB"). States and local education agencies are charged with ensuring that by the 2013-14 school year, every one of their students scores at the proficient or advanced levels on state tests aligned to state standards. Schools and districts that fail to make “adequate yearly progress” towards this objective may receive technical assistance or be subject to “corrective action.”

Beginning with the 2002-03 school year, all newly hired teachers and paraprofessionals in Title I schools had to be "highly qualified," and, by the 2006 school year, all public school teachers and paraprofessionals must be "highly qualified". Parents must be involved in planning and developing the programs NCLB establishes and parents of students in schools identified for improvement or corrective action are empowered to secure additional educational services for their children or to transfer their children to other public schools. States, districts, and schools must issue regular report cards to inform parents and the community of their progress towards the goals and requirements set forth in the Act. NCLB's goals are extremely ambitious, probably impossible, and its passage was accompanied by a small increase in federal funding, including new targeted funding for districts with high concentrations of poverty.

NCLB also contains a provision providing that no State or local educational agency will have to incur any expense or spend any funds in order to fulfill the mandates of NCLB that are not paid for by federal funding. In theory, the law prohibits the imposition of an "unfunded mandate" in connection with NCLB. This provision and the alleged “intrusive” nature of this federal law into education, which traditionally has been a state and local responsibility, has fueled a backlash against NCLB in many states.

When passed, many education officials, advocates, and commentators were cautiously optimistic about the law, viewing it as a promising step towards ensuring that all students have a sound education, particularly in its commitment to closing the "achievement gap" that too often separates minority, low-income, English language learners, and students with disabilities from their peers.

As so clearly articulated by the Education Trust and others, closing teacher gaps and opportunity gaps in order to close achievement gaps must be national, state and local priorities if we are to educate our children effectively. Many educators agree that the strength of NCLB is its focus on a national set of educational ideals.

Unfortunately, many American schools lack the fundamental resources, in terms of qualified teachers, adequate facilities, sufficient materials, or funding for preschool and other specific educational programs, which students need to succeed. The law lacks any mechanism to ensure that schools have adequate resources to provide their students with an adequate education. While NCLB focuses attention on the achievement gaps, a nationwide debate has unfolded regarding the law's potential for actually closing these gaps.

ACCESS has prepared this policy brief to summarize the components of the law and the experience with its implementation to date.

II. Testing and Adequate Yearly Progress

NCLB imposes specific requirements for student test scores on each school and school district. Congress had already (in the 1994 reauthorization of ESEA) required states to adopt reading and math standards. In the 2001 reauthorization of ESEA (NCLB), Congress added a requirement that states adopt science standards by the 2005-06 school year. Student academic achievement standards must be aligned with the state's content standards, and the law requires states to develop tests that accurately measure the same challenging knowledge and skills that are contained in the state's content and achievement standards. By the 2005-06 school year, students must be tested every year in math and reading in grades 3 - 8; science tests must be developed and put into place by the 2007-08 school year. States are to establish at least three levels on the tests: basic, proficient, and advanced. By the 2013-14 school year, every student must achieve proficient or advanced levels. Every other year, students in grades 4 and 8 must also participate in the National Assessment of Educational Progress (NAEP).

The school district and each individual school must also make "adequate yearly progress" ("AYP") towards the 100% proficiency goal by the 2013-14 school year. Although largely judged on student test scores, high schools must also be evaluated on their graduation rate and elementary and middle schools on at least one other academic indicator.

Economically disadvantaged students, students of color, students with limited English proficiency, and students with disabilities also tend to lag behind their peers. NCLB's stated intent is to require that states, districts, and schools acknowledge, and then end, this achievement gap. To this end, the new legislation requires that states, districts, and schools disaggregate test score results for economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency and evaluate each subgroup's progression towards proficiency. The law provides that states may choose a minimum number of students that will be considered for disaggregation purposes. The only stated requirement in the law regarding the size of the disaggregated subgroup is that it be statistically significant.

The application of these general principles is rather technical. Each state sets separate starting points for English and math and designates the performance levels that must be met in subsequent years. The starting point is based on 2001-02 test scores and must be at least the higher of the percentage of students that are proficient in the state's lowest achieving subgroup or the percentage of students that are proficient in the school at the 20th percentile statewide. Each year, individual schools must meet or exceed the state objectives both for their entire student population and for each subgroup (or meet a limited "safe harbor" provision which can apply if students in a subgroup fail to meet targets but nonetheless make significant progress on tests and on other indicators). At least 95% of students in each subgroup must be tested. Students with disabilities and limited English proficient (LEP) students generally must take the standard tests with appropriate accommodations. The law provides that states must make "every effort" to develop tests in "languages other than English that are present in the participating student population."

NCLB requires that data regarding adequate yearly progress at the school, district, and statewide level is readily available to parents and to the public generally. The state "report cards" must, at a minimum, include information on general student achievement and the achievement of each of designated subgroups on the math and reading/language arts tests, as well as percentage of students in each subgroup not tested. In addition, they must also include information that can be used to compare actual achievement to the state's objectives, graduation rates and other alternative academic indicators, information about districts' and schools' yearly progress on tests, and teacher qualifications and credentials (in the aggregate and disaggregated by high-poverty compared to low-poverty schools). Districts must produce reports cards with similar district-level information.

Implementation: Many states are finding that NCLB's methods for assessing student performance and focusing on groups which have been traditionally undereducated are problematic. The difficulties encountered by states, school districts and schools fall into three general categories: (1) dual testing systems; (2) the definition of adequate yearly progress; and (3) disaggregation of subgroups.

(1) Dual Testing Systems: When NCLB was enacted, many states already had testing and accountability systems in place. These systems focused on goals that the states determined were of primary importance. The states' educational goals were not always consistent with the new federal goals. In particular, many states eschewed a single performance measure, as required by NCLB. Many states added the NCLB requirements to their existing accountability programs. One of the results of maintaining dual systems is that the public receives mixed messages about school performance. Schools that were honored as excellent schools under a state accountability system find themselves labeled as "needing improvement" and subject to sanctions under NCLB. For example, it was reported that in 2003, only 47% of North Carolina's schools made Adequate Yearly Progress, even though 94% of the state's schools passed state learning standards. Similarly, it was reported that 84% of Florida's schools did not make AYP, although 78% of those schools that failed to make AYP had attained an A rating under Florida's state learning standards.

Moreover, the differences in accountability systems among states yield inconsistent results regarding "proficiency." NCLB allows each state to define proficiency, yet all states must be 100% proficient by 2014. As a result, several states lowered the score required to be considered "proficient" so that more students would make AYP. It was reported that Connecticut lowered its standards so that 80% of the students would pass its tests and make AYP. Colorado and Louisiana also lowered their proficiency standards for federal purposes, while maintaining higher standards for local use.

For the 2005-06 school year, states that kept their proficiency targets static for the past two years, as is allowed under NCLB, must now raise those targets. In response to this requirement Missouri has received permission from the federal government to lower its proficiency targets. Florida is considering a similar move. As all states will be required to show that 100% of their students have reached proficiency by 2014, students in those states with lower targets in the early years of implementation will be required to make larger jumps in proficiency during the later years of NCLB implementation.

(2) Adequate Yearly Progress: The overall goal of NCLB is to achieve 100% nationwide proficiency by 2014. Most educators, researchers and state officials agree that 100% proficiency is an unrealistic and unachievable goal. In Minnesota, a state with historically high achievement and a high percentage of schools making Adequate Yearly Progress, the Office of the Legislative Auditor and the University of Minnesota conducted a simulation which revealed that between 80%-100% of that state's elementary schools would fail to make AYP by 2014. The implication is that all states will have similar or worse results.

As stated above, NCLB requires that schools and states test students each year at various grade levels, then report those results to the U.S. Department of Education ("ED"). These yearly tests form the basis of the determination of whether a school has made "adequate yearly progress" ("AYP") or is in need of improvement and therefore possibly subject to sanctions. These test scores are compared to the test scores of the same grade from the previous year. Thus, the third grade test scores, for example, are compared to the test scores of third graders from the year before, who are now in fourth grade. The federal requirement does not provide that the same students be compared over time. Furthermore, the tests are only given in English, math and, in the upper grades, science.

Accordingly, there is concern that AYP may not provide an accurate picture of student performance or of a school's performance. By focusing on a student's performance at a single point in time, without any information concerning that student's starting point, it is impossible to gauge that student's progress and to know how the school contributed to the student's progress. Moreover, by focusing solely on the point of proficiency, AYP gives no information regarding the progress of those students who are above proficiency level, as well the progress of those students who are well below proficiency level. These snapshots may tell us more about the demographics of a school than how that school has contributed to the students' learning. In March 2004, chief state school officers from 14 states wrote to U.S. Secretary of Education Roderick Paige requesting that ED allow states to include a growth model in NCLB assessment of AYP.

Several studies have concluded that AYP's narrow focus on certain subject matters has substantial negative impacts. The Council for Basic Education and the National Association of State Boards of Education reported in separate studies that the focus on AYP subjects has led to a decrease in instruction time in arts, foreign languages and elementary social studies. Furthermore, the Council for Basic education reports that schools enrolling higher numbers of minority and low-income students were more likely to experience decreased instructional time in arts and foreign languages. The validity of the tests relied upon for AYP analyses have been called into question. These tests are standardized, mostly multiple-choice tests, which many educators believe do not truly assess a student's performance or learning.

(3) Disaggregated Subgroups: While disaggregating test results by subgroup focuses needed attention on underserved populations, attaching high stakes consequences to disaggregation runs the risk of hurting these same populations. Schools with a diverse population have more benchmarks to meet and therefore are more likely to fail to meet one of those benchmarks, and consequently not make AYP. Very often, the schools with diverse a population are those most lacking in basic educational resources..

Researchers and state officials have also recognized that separation into disaggregated subgroups may at times result in overidentification of subgroups or of schools that fail to make adequate yearly progress. If one child is a member of multiple subgroups, his/her single score will affect the passing rate of each subgroup. State officials in Maryland noticed that students belonging to the Special Education or Limited English Proficient (LEP) group often also belong to the Free and Reduced Meals (FARMS) group. Accordingly, they have asked the Department of Education to allow them the count those children in only one subgroup, in the following order of priority: FARMS, Special Education and LEP.

There is also controversy about how AYP is measured for Students with Disabilities and the English Language Learner (ELL), or Limited English Proficient (LEP).

Students with Disabilities

NCLB requires all but a very small percentage of students with disabilities to take grade-level assessments. The law allows only a minimal number of students with the most severe cognitive difficulties, amounting to no more than one percent of the student population, to take alternate assessments and still be counted for AYP purposes. Educators and researchers point out that many students do not fall within this narrow category yet still cannot take grade-level assessments. Thus, forcing these students to do so will ensure failure. Moreover, the NCLB requirements that almost all students take grade-level assessments and meet the same proficiency targets often conflict with another, long-standing, federal law: the Individuals with Disabilities in Education Act (“IDEA”). IDEA mandates that students with disabilities receive individualized instruction and take individualized assessments, in compliance with an Individualized Education Plan (“IEP”). Consequently, if a school attempts to comply with a student’s IEP, as is required by IDEA, it will run the risk of violating NCLB. Officials of several have recently requested, or are considering requesting, leeway from ED, that would enable students with disabilities to follow their IEP and not NCLB. One Illinois school district, the Ottawa School District, has sued the federal government, seeking to invalidate those provisions of NCLB that conflict with IDEA.

Limited English Proficiency

NCLB requires that students with Limited English Proficiency (“LEP” students or “ELL” students) take assessments in Reading/Language Arts, Math and English Proficiency. There are two exceptions to this rule: (1) a student who has been in this country for one year or less need not take the Reading/Language Arts assessment; and (2) The math scores of students in the country for one year or less will not count toward AYP. In addition, students considered LEP in the previous year or two years may be considered LEP, even if they have achieved English proficiency. NCLB also provides that LEP students may take assessments in their native languages. Even with this limited flexibility, NCLB assessments for LEP students present several problems. Although a student may be considered LEP for three years, experts agree that it actually takes an average of five years for a student to become academically proficient in English. Until then, it is impossible to distinguish between a linguistic error and an academic error. Thus, tests for these students are unreliable indicators of academic achievement. Moreover, although NCLB permits native-language testing, most states have none, as they are cost-prohibitive. As was recently pointed out by Connecticut’s Commissioner of Education, that state has 160 native languages. To develop tests in these languages would cost tens of millions of dollars. Additionally, experts note htat even if states develop native language assessments, it would be unlikely that these tests would be aligned to state standards and curricula. This type of test would then also be unreliable. In view of these difficulties, several states, including Connecticut and Virginia, have asked, or have considered asking, ED to exempt LEP students from NCLB testing for three years.

Conclusion: The ostensible purpose of the testing requirements in NCLB is to ensure that schools effectively carry out their function and that all children learn, regardless of their ethnic or economic background or disabilities. While it is important to focus on results, the measurements being used to demonstrate achievements must be truly representative of how schools actually perform. If the testing provisions of NCLB do not provide an accurate picture of how schools perform or how well students are learning, they will not accomplish their stated goals.

III. Schools "In Need of Improvement" or Subject to "Corrective Action"

Schools that receive Title I funds and fail to make adequate yearly progress for two consecutive years generally will be designated schools "in need of improvement." Within three months of such designation, each school must develop a "school plan" outlining how it will address its shortcomings. These plans, which are to be developed in consultation with school and district staff, parents, and outside experts, must include specific strategies for improving instructional techniques in specific areas where students, or subgroups of students, were not proficient and set measurable goals for improved student achievement. Districts must provide extensive technical assistance to schools in analyzing data, school resources, and capacity to assist them in creating the plan. At least 10% of Title I funds received by the school must be used for professional development addressing the school's academic shortcomings. Schools that continue to fail to make AYP are subject to escalating levels of corrective action.

Districts must also show that they are making AYP as a whole. If they fail to do so, they must also receive technical assistance and may, if they continue to miss their AYP targets, be subject to state takeover or other radical restructuring. States also must show that they are making AYP towards 100% proficiency. The Act provides that 2% of Title I, Part A funding must be set aside for technical assistance, with 95% of these funds going to schools identified for school improvement, corrective action, and restructuring.

The year after a school is identified as "in need of improvement," its students generally must be given an option to transfer to schools meeting AYP goals in the district. All students in a school that misses AYP are eligible, but priority for transportation assistance must be given to the lowest-achieving children from low-income families. Regulations released by the Department of Education in fall 2002 (after the first round of student transfers had occurred) state that districts cannot use lack of capacity or class sizes in the receiving school as a justification for failing to provide all eligible students with a choice of at least two schools. If a school fails to meet AYP for a third consecutive year, low-income students in the school have a right to use a portion of their Title I money for "supplemental services," such as tutoring by private agencies which are independent of the school system. Assuming there is sufficient demand, districts must spend at least 20% of their Title I, Part A funds (the bulk of funding under the Act) for transportation and supplemental services. These options must be made available to students until the school makes AYP for two consecutive years.

If a school does not meet the adequate yearly progress target by the end of the second school year after being identified as being "in need of improvement," then the school is subject to "corrective action" in one of the following ways: (1) replacing the staff who are relevant to the school's failure to make AYP;(2) institution of a new curriculum, together with professional development, aimed at helping the school make AYP; (3) significant decrease of management authority at school level; (4) appointing an outside expert to advise the school on how to make AYP; (5) extending the school year or school day; or (6) restructuring the school.

If after one year of corrective action, the school does not make AYP, then the following actions are to take place: (1) closing the school and reopening it as a public charter school; (2) replacing all or most of the school staff (which may include principal) relevant to the failure to make AYP; (3) entering in to a contract with an entity, such as a private company, to operate the school; or (4) turning operation of the school over to the state.

Implementation: There have been many challenges in administering these programs across the country. In addition, educators and analysts have questioned the efficacy of transfers and supplemental services in raising student achievement.

(1) School Transfers: Several studies confirm that very few students eligible for transfer have in fact invoked this option. In early December 2004, the U.S. Government Accountability Office (“GAO”) published a study examining the experience of eight school districts in seven states and concluded that only a small percentage, about one percent, of eligible students exercised the transfer option during the first two years of NCLB implementation. The study found that school districts faced two key difficulties with transfers: the lack of capacity in receiving schools and timetables for implementation. Two other recent reports also examined transfers during the first two years of NCLB implementation. The Council of Great City Schools (CGCS) released the results of a survey of 50 city school districts, which revealed findings similar to those in the GAO report but also found that the number of student transfers increased substantially in the second year. An earlier study by the Citizens’ Commission on Civil Rights (CCCR) reported that many more students than anticipated exercised the transfer option. However, while the number of student transfers, 70,000, seemed large, the percentage of eligible students that transferred was actually small, similar to the results reported by GAO and CGCS

The studies found that the reasons for the low number of NCLB transfers varied. Parents to prefer that their children remain in their school or in their neighborhood. In some cases, parents did not receive notification, as will be discussed below. The school transfer provision has also presented difficulties for both the sending schools and the receiving schools. The problems fall into three categories: (a) logistical and cost problems for sending schools; (b) capacity problems for receiving schools and (c) availability and quality of receiving schools.

(a) Cost and logistics: School transfers have negative economic consequences for schools in need of improvement. Title I schools are required to use their Title I funding to pay for transfers of students. Thus, the diversion of Title I money for the purpose of transferring students further strains the schools' limited budgets. Moreover, Title I schools whose students transfer out will lose Title I funds allocated for those students.

Sending schools also experience logistical problems. In 2003, in many areas, test scores were not available until after the deadline for notification of transfer eligibility. Therefore, school officials did not yet know whether or not their school was designated as "in need of improvement" at the time they were required to notify parents of their children's right to transfer.

(b) Capacity of Receiving Schools: The major concern for receiving schools has been capacity to accommodate the eligible transferring students. Under NCLB, receiving schools must find room for the transferees. If the school is the subject of an existing desegregation order, the school must seek permission from the court to change the desegregation plan in order to allow these students to attend, even if that change will undermine the purpose of the desegregation order. According to the Center on Education Policy Study, 73% of receiving schools experienced such capacity problems. Schools are sometimes reluctant to accept an influx of transfer students, because these students may threaten their own status as schools meeting AYP.

The GAO report found that some school districts were unable to accommodate transferring students because their schools were already overcrowded. Other districts foresaw a capacity problem once the number of schools required to offer transfers increases. The CGCS survey found similar problems and stated that receiving schools experienced larger class sizes and more disciplinary incidents as a result of the transfers. In Philadelphia, for example, the survey reported that the district could only locate 1,240 available seats. The district sought seats in the surrounding districts, but none of those districts accepted any transfers. The survey reported that Philadelphia was considering transferring students to parochial schools.

(c) Availability and Quality of Receiving Schools: In urban districts there often is a paucity of appropriate receiving schools. Because urban schools are often comprised of multiple subgroups, they have more of a chance of not making AYP and, therefore being labeled "in need of improvement." When many schools in the same urban district are labeled as being in need of improvement, there are few eligible receiving schools. Chicago officials predict that in 2005, only 20 out of 600 schools will receive transfer students, and there will be only 457 spots for 300,000 students. In the GAO study, officials in large urban areas remarked that they had to offer transfers into schools that did not meet NCLB’s adequate yearly progress (AYP) goals. In rural districts, there is often only one elementary and secondary school. In Nebraska, for instance, 90% of the school districts have only one building at any grade level. Consequently, there simply are no other schools to which students may transfer.

In addition to availability issues, the increased quality of instruction at receiving schools is questionable. The Harvard Civil Rights Project reported that in Chicago, the majority of receiving schools are on a state list for poor performing schools. Many of the receiving schools in urban areas are high poverty schools themselves. Therefore, students in urban districts had little chance to transfer to thriving schools. If a student from a Title I school does transfer to a non-Title I school, then he/she will no longer receive certain Title I services, such as Title I after school programs or other Title I school-wide programs, because these programs are only available to schools with at least a 40% poverty level.

(2) Supplemental Services: Although more students use the supplemental educational services (“SES”) option than the transfer option, still only a small percentage of eligible students have elected to participate in the supplemental services option. There are several reasons for the low participation rate. The Harvard Civil Rights Project and CEP report that availability is an issue, especially in rural areas. Since the majority of supplemental service providers are private companies, many choose not to operate in rural small markets. As indicated above, late notification is also a problem. If schools do not receive timely notification that they are designated "in need of improvement," they cannot notify parents in a timely manner.

Researchers point out that there is little empirical evidence that supplemental services raise student achievement. The Harvard Civil Rights Project has recommended halting this option until there is more evidence on the subject. The contention of those who question the efficacy of supplemental services is that funds would be better spent on other strategies which have been tested and proved to improve student achievement, such as improving the quality of teachers and pre-school for children at risk.

In addition to the dearth of evidence that supplemental services raise student achievement, there are allegations that mandating supplemental services has a negative impact on a school's ability to improve learning by undermining the traditional holistic approach used in Title I programs. While Title I programs tend to affect the entire school, supplemental services focuses on individual eligible students. Some critics argue that by diverting Title I money to administering individual tutoring programs, the supplemental services option makes it more difficult for schools to improve.

Another problem with supplemental services is the lack of oversight and quality control by the federal government. Without these safeguards, there is no guarantee that the supplemental service providers will help students succeed. A survey conducted by the Council of Great City Schools (“CGCS”) that private providers were not aligning their tutoring with school curricula, but were using prepackaged materials instead. Moreover, there is no requirement that these outside providers service special education students and English Language Learners. CGCS found that many providers refused to tutor students with disabilities and students with limited English proficiency. Often, these students are most in need of the supplemental services and are are more expensive to educate. The Chicago and Philadelphia school districts responded to the lack of providers by becoming providers themselves. However, under NCLB, these districts are not permitted to be SES providers because they have been labeled districts “in need of improvement.” This action has led to clashes with the federal government, who seek to disallow these districts from providing the services.

The sanctions mandated by NCLB are also often inconsistent with programs viewed by states as necessary to improving achievement. State courts deciding the school funding adequacy cases have also looked at achievement gaps and the need to close them. Unlike NCLB, these courts have connected achievement gaps to resource gaps, based on evidence presented by plaintiffs. In ordering remedies, the courts have determined what aspects of education are essential and which have been proven to raise student achievement. Several fundamental resources and programs are being consistently ordered as remedies by the courts: (1) quality teaching; (2) quality preschool; (3) programs and services for “at-risk” students, such as summer school, early literacy, etc.; (4) adequate facilities; (5) appropriate class sizes; and (6) sufficient instrumentalities of learning, such as books and supplies. Other resource needs have been found to be crucial by some courts, such as access to challenging curriculum, teaching of the arts; quality principals, district and state capacity, etc. Courts are also increasingly ordering states to perform cost studies or are relying on cost studies already completed that calculate the actual costs of providing an adequate education.

Taking an approach similar to those used by courts in education adequacy cases, Connecticut’s Commissioner of Education, Dr. Betty Sternberg, recently asked ED to take another look at its programs for schools “in need of improvement.” She noted the programs Connecticut’s struggling schools needed, including: preschool, family resource centers, incentives to retain teachers, paraprofessionals and administrators, and a longer school day/year, and asked ED to refocus consequences for schools in need of improvement to make them “more conducive to real and constructive change.”

Conclusion: The sanctions called for by NCLB highlights the differences in approach with many educators. NCLB emphasizes transfers and private supplemental services as tools to spur schools to improve. Many educators, on the other hand, view these measures as depriving them of needed funds to improve schools and placing the funds in programs that have not been widely proven to raise student achievement.

IV. "Highly Qualified" Teachers and Paraprofessionals

Education research has strongly established that quality teaching is essential for educational improvement. Unfortunately, there is ample evidence that children of color in high poverty communities are more likely to be taught by unqualified teachers than students in affluent neighborhoods. Research has shown that secondary school students in high poverty schools are twice as likely as those in low poverty areas to have teachers who are not licensed in the subjects they teach. Moreover, teachers in high poverty areas are more likely to be less experienced. One study found that in high-minority elementary schools, nearly 15% of teachers are new year after year.

Starting in the 2002-03 school year, all teachers newly hired in programs supported by federal funds under Title I must be "highly qualified" as defined by NCLB. Generally speaking, this means that the teacher must be state certified and have demonstrated competency in the subjects he or she is teaching. Likewise, all paraprofessionals hired in programs supported by Title I also must meet NCLB standards of "highly qualified." By the 2005-06 school year, all teachers teaching in core academic subjects (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography) are to be "highly qualified." States had to immediately develop a plan in 2002 to demonstrate how they will achieve this objective, and also how they would increase annually the percentage of teachers that are receiving "high quality" professional development. The plan must also include specific steps that the state will take to ensure that poor and minority children are not taught at higher rates than other children by teachers who fail to meet the "highly qualified" definition.

NCLB allows veteran teachers to meet the same requirements as new teachers or to demonstrate competence in all academic subjects that the teacher teaches based on a "high objective standard of evaluation ("HOUSSE"). Each state may develop its own HOUSSE standards, but they must meet certain general criteria, including: grade-appropriate subject matter knowledge and teaching skills; alignment to state student achievement standards, provision of objective, coherent information regarding the teacher's achievement of core content knowledge in the subjects he/she teaches; uniform application throughout the state; availability to the public; presence of multiple objective measures of teacher competence.

Implementation: While the aim of staffing all schools with "highly qualified" teachers is a goal widely supported by educators, many have found the implementation of this requirement under NCLB to be less than successful. A number of educators, administrators, and researchers across the country have lamented that the federal government's approach does not lead to meaningful reform, owing to: (1) a lack of meaningful standards, (2) a lack of funding for professional development and (3) a lack of mechanisms to recruit and retain highly qualified teachers, especially in rural and urban communities.

(1) Lack of Meaningful Standards: There has been criticism that NCLB and its regulations do not provide any real standards for "highly qualified" teachers. There is no uniform, specific definition in either the law or regulations of a "highly qualified" teacher. In fact, it is left to the states to determine the standard. The federal government does not review assessments given to teachers, nor does it review state methods for achieving the goals of the "highly qualified" teacher section of the law.

The federal government's reliance on the states has proven problematic for several reasons. Researchers have found that self-reporting is unreliable. Most school districts do not have a classification system for qualification of teachers, nor do they have the capacity to track the assessment of teachers. Despite this lack of capacity, the Center on Education Policy reported that a surprising number of districts reported that most or all of their teachers were highly qualified. Upon closer examination, analysts have discovered that these statistics are questionable. States have admitted to guessing the number of highly qualified teacher, or artificially inflating the number so as to spare teachers' feelings. The fact that one state (Alaska) can report that only 16 percent of its teachers are currently highly qualified, while another state (Wisconsin) reports that 99 percent of its teachers are “highly qualified” illustrates the gross fluidity of this standard.

While many states have taken the intent of the provisions to heart, others have established very minimal standards. In fact, the Education Trust has reported that some states maintain two sets of records, one for public reporting under NCLB, and another with the states’ true definition of qualified teachers. For example, Utah’s submission to the federal government reported that 95.9 percent of its teachers were highly qualified. However, in an addition to its filing, Utah noted that only 25 percent of those teachers were “fully” highly qualified, and the other 71 percent had a vague “interim” highly qualified status.

In addition, many existing state certification requirements are inadequate. The Education Trust found that seven states have no licensing examinations for teachers and that testing standards in many of the remaining states and the District of Columbia exclude only "the weakest of the weak." Few state teacher licensing examinations are linked to specific areas of knowledge students are required to know under state learning standards.

The lack of uniform guidelines has also produced a great deal of confusion in the development and application of HOUSSE standards. Some states have fairly simple and straightforward requirements, where other states have developed extremely complex sets of requirements. In these latter states, teachers must pore through volumes of documentation in order to determine whether or not they are qualified. The lack of federal standards also presents a challenge for assessing the cost of achieving qualification. For example, the Ohio NCLB costing-out study noted that, depending on one's definition of highly qualified, it would either cost the state a one-time charge of $875,000 for Praxis exams for non-qualified teachers, or it would cost $59 million dollars annually to pay increased salaries to all teachers if they all attain masters degrees.

In addition to the lack of rigor and specific standards, educators and analysts assert that NCLB does not emphasize the skills truly needed to be an effective teacher. The Department of Education emphasizes verbal skills and content knowledge only. Reinforcing this, the U.S. Department of Education is moving toward the increased use of standardized tests to assess teacher qualifications. However, several surveys of teachers reveal a strong belief that in addition to content knowledge, it is essential that teachers receive pedagogical training in order to be effective. Experts agree with this assessment. According to Barnett Berry and his colleagues at the Southeast Center for Teaching Quality (SECTQ), the attempt “to improve teacher quality by simply requiring teachers to pass standardized subject matter tests . . . largely ignores much of the knowledge and many of the skills that are critical to administrators and teachers working in high-challenge schools.” According to SECTQ, definitions of “highly qualified” and state licensing criteria need to focus especially on the skills of teachers to work with second language learners, special education students, struggling readers, and their families.

(2) Professional Development: Recent research has found that good teacher preparation reduces attrition significantly among first-year teachers, as do induction programs and mentoring. Professional development is also crucial. Many educators and administrators believe that NCLB's most positive effect in the area of teacher quality is its increased focus on professional development. However, sufficient funds have not consistently been made available for developing and administering quality professional development programs. In fact, in 2004 the federal government cut $81 million in Title II professional development grants. Nor did the federal government increase Title II funding in 2005. This lack of federal funding, coupled with budget crises in many states, has severely contracted states' abilities to provide professional development. Furthermore, most professional training dollars are spent on teachers, with very little spent on paraprofessionals who also are required to be highly qualified.

(3) Lack of Mechanisms for Recruiting and retaining Highly Qualified Teachers: NCLB’s highly qualified teacher provisions emphasize the qualifications of the individual teacher but ignore other important mechanisms for improving teaching quality and ensuring that all students are actually taught by highly qualified teachers. Ensuring access to quality teachers for all students requires attention to solving problems of teacher recruitment and, especially, teacher retention. Almost a third of the nation’s teachers leave the profession during their first three years of teaching. After five years, that percentage jumps to almost half. Hiring a highly qualified teacher is of little use if he or she leaves the school in the first few years of teaching.

Both high-poverty urban and rural areas experience great difficulties in recruiting and retaining qualified teachers. These areas are often unable to offer high enough salaries or attractive working conditions. High poverty areas lack programs to support and help retain new teachers. In rural areas, teachers often must teach multiple subjects but have less access to the means to demonstrate their qualifications in those subjects. NCLB has not aided high-poverty urban and rural areas to recruit and retain highly qualified teachers.

Richard Ingersoll’s research further shows that teachers leave the profession not only because of poor salaries, but also due to poor working conditions such as too-large class sizes and inadequate administrative support. The adequacy of resources like instructional materials, supplies, and facilities improves working conditions for teachers. It is no coincidence that the school conditions that support quality learning are the same conditions that support quality teaching.

Federal Response: In March 2004, the federal government eased some restrictions for new and veteran teachers in some rural areas. New teachers now have three years to meet qualification requirements and veteran teachers have an extra year to demonstrate competency in each subject. However, the federal definition of "rural" areas affected by this change only covers 26% of the nation's rural and small town schools. Moreover only 25% of those schools affected by the eased standards are high poverty. Therefore, the change does not aid all poor rural schools. [check any new federal action]

Conclusion: There is a wide body of research pointing to the fact that high quality teaching is a vital factor in raising student achievement. There are serious questions as to whether NCLB actually promotes the hiring and retention of teachers who are truly "highly qualified."

V. Parent and Community Involvement

Education research has confirmed that family and community involvement is of critical importance both for student achievement and for building successful schools. From its inception in 1965, the Elementary and Secondary Education Act (ESEA) has included provisions to encourage parental involvement in schools. Over the years, parent advocates have pressed congress to strengthen these provisions in periodic ESEA reauthorizations, and their efforts have met with substantial success. NCLB mentions parents 240 times, and one of the Act’s major state purposes is to “afford[ ] parents substantial and meaningful opportunities to participate in the education of their children.”

Most of NCLB’s provisions on parent and community involvement are at the school and school district level, especially under Title I. Title I schools and districts must develop their Title I applications, plans, and school improvement plans “in consultation with parents.” They must also seek advice and input from parents in developing parent involvement policies and on the use of funds to be spent implementing those policies, and must “jointly develop with parents of students served by Title I a school-parent compact” that delineates shared responsibilities and how the school and parents will partner. On the critical issue of building local capacity for parental involvement, NCLB allows -- but does not require -- Title I schools and districts to educate school staff and parents in ways that will promote effective parental involvement.

While NCLB contains good language about parent and community involvement, implementation of these provisions has fallen far short of the mark. Despite the fact that parents’ involvement in their children’s schools usually depends on the degree to which they feel welcome, schools and districts often need to be convinced that parent and community involvement are part of the solution for achieving excellence in high-poverty schools, not an “add on.” With states and school districts scrambling to comply with the law’s testing and sanctions mandates, the parent and community involvement provisions are often given short shrift.
Much of the parent and community participation language of NCLB emphasizes voluntary compliance in a context where other provisions are mandatory, highly visible, and deadline oriented. There clearly is a need for more extensive federal monitoring in this area. Moreover, the complexity of the law and its language raise the need for parental training and outreach to the level of an imperative. However, these needs are not supported by federal funding or close oversight. Putting provisions that encourage training and outreach into substantial practice will require incentives or grants rather than mere words.

For parent and community involvement to be effective, educators must believe in it and promote it. Accordingly, professional evelopment that presents best practices and offers examples of successful programs is a crucial step toward increased involvement. Under Title II, school districts are allowed to use federal funds for professional development that informs teachers and administrators about successful techniques for parent and community involvement and how their involvement actually raises student achievement and improves schools. But, Title II funding has been reduced, and few districts use their available funds for this type of professional development.

Also, the current NCLB provision that calls for schools to communicate with parents in a language they can understand adds the caveat “if practicable.” Parents cannot, of course, be involved in their children’s school-based education if they cannot understand the communications from their children’s schools. A further impediment to parent participation is the lack of a requirement that interpretation services be provided for parent meetings in schools. In practice, most school districts are falling short on translating their communications into the languages their students’ families use.

VI. Additional Resources, Funding, and Cost Estimates

It is clear that many states and/or districts will need to commit significant additional resources to their schools if they are going to have a fighting chance of even achieving NCLB's goals for their students. One area of contention among federal officials and supporters of the law on the one hand, and some state officials and the law's critics on the other, is how much money is needed and whether the federal allocation to the states will cover that cost.

Federal Allocation under NCLB: Title I money, though ostensibly targeted for low-income children, has been spread very thin. Under the "basic grant" formula (the bulk of Title I funding), funds go to schools with as few as 2% of children below the poverty level, the result being that nine out of ten districts receive funding. "Concentration" grants provided limited additional aid to districts with poverty rates above 15%. Nonetheless, under previous funding allocations, many schools with high poverty rates, including one out of every five schools with poverty rates between 50 and 75%, did not receive any funding because they were surrounded by schools with even higher poverty rates.

NCLB Funding Debate

Federal funding of NCLB has generated complaints and political rancor across the country. The current administration claims that the law is fully funded, while many chief state school officers, legislators and school district superintendents, with a largely bipartisan voice, assert that it is an unfunded mandate. Ironically, NCLB is one of the few federal laws that explicitly prohibits imposition of unfunded mandates.

Most of the NCLB funding debate has dwelled on the annual differences between authorized and appropriated funding levels. The chart below shows the authorized and appropriated funding for Title I, Part A, in billions of dollars:

Source: www.nea.org

How much funding is needed?

Although the differences between authorizations and allocations are significant, the true costs of the law's mandates loom large on the horizon. NCLB's authorizations bear no relationship to the actual costs of educating students to meet state academic standards or the funding that would be necessary to lift most children to the proficient level.

The only state cost studies of NCLB released to date are very limited in scope but indicate major unmet needs. In Ohio, researchers concluded that the state would have to spend more than $1.5 billion annually – primarily for academic intervention services – to bring its students to proficiency. The study did not include facilities costs or preschool and focused only on grades K through 3. A Texas study looked only at bringing 55 percent of students to proficiency, without the disaggregation required by NCLB. The study estimated a $1.7 billion shortfall in Title I funding for the 2004-05 school year.

Other states are conducting limited NCLB cost studies which examine solely the administrative costs of NCLB and not the larger costs of having students meet state academic standards. These costs include, for example, the cost of developing and administering new tests required by NCLB and the costs of administering the transfer and supplemental educational services provisions of the law. Connecticut, New Mexico, Hawaii, and Virginia have conducted these limited NCLB cost studies. Even with this limited universe, Connecticut estimated the marginal administrative costs to be $112.2 million, of which the federal government would pay $70.6 million. Therefore, Connecticut will face a shortfall of $41.6 million. Hawai'i estimated that the additional administrative costs represent a 2% increase in per-pupil spending in 2004, growing to 3.5% in 2008. Virginia's study shows a $61 million annual shortfall.

Additional evidence of NCLB costs is available from the education “adequacy” cost studies completed in more than two dozen states over the last 15 years. Despite the differences in methodologies, location and researchers, the studies consistently demonstrate the need for massive additional funds. Most of these studies estimate the cost of bringing less than 90 percent of public school students to proficiency on state tests, and they reveal shortfalls of 20 to 40 percent in statewide funding. In Kansas, for example, the adequacy study found the state needed to spend $853 million more on a base of $3.9 billion per year, a 21.9 percent increase; the New York Adequacy Study found the state needed to spend $6.2 to 8.4 billion more on a base of $31.7 billion per year, increases of 19.6 to 26.5 percent. Some of the finance experts who do these studies have stated that the cost of raising 100 percent of a state's students to proficiency, while obviously higher, is virtually impossible to calculate at this time, but is estimated to exceed $100 billion annually.

State and Local Responses to Insufficient Funding

As noted by William Mathis in his April 2004 Education Week commentary, some NCLB cost estimates merely examine testing and reporting costs, which are a relatively small portion of the total costs. But even these additional administrative costs exceed the recent increases in federal funding. Moreover, the amounts authorized under NCLB do not comport with the funding described in the law, according to Mathis. In contrast to the law's statement that each child living in poverty is eligible to receive an extra 40 percent of the state's average per-pupil spending, amounting to a total of $30.4 billion, current federal funding, at $12.3 billion, constitutes only 41 percent of that amount

Drafters of NCLB apparently sought to avoid unfunded mandates by expressly including an “Unfunded Mandates Provision.”  20 U.S.C. Sec. 7907(a) (NCLB Sec. 9527(a)).  Using the same language in three earlier education statutes—the Goals 2000 Education Act (enacted in March 1994), the School to Work Opportunities Act (enacted in May 1994), and the Improving America's Schools Act (the 1994 reauthorization of the Elementary and Secondary Education Act) – NCLB provides:

GENERAL PROHIBITION:  Nothing in this chapter shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local education agency, or school's curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this chapter.

20 U.S.C. Sec. 7907 (a).  This provision has figured prominently in state and local debates about the additional funding required to comply with NCLB.

In response to the under-funding of NCLB, some states have passed laws that prohibit spending "any state funds or incur[ring] any costs not paid for under [NCLB] in order to comply with the provisions of the act" (Maine) or give school districts the choice of whether or not to spend state and local money on NCLB (Vermont). Other states, among them Utah, New Hampshire, New Mexico, Idaho, Virginia and Washington have considered opting out of NCLB or have passed resolutions requesting that congress amend the law. In addition, many states have begun authorizing and conducting NCLB cost studies

Legal Advice and Lawsuits

Wisconsin was the first state formally to challenge NCLB when, on May 12, 2004, its Attorney General responded to a request from a state legislator inquiring about Wisconsin 's obligations to fulfill the law's requirements without full federal funding. The Attorney General concluded that the “plain meaning” of Section 7907(a) conveyed the message that “States and their subdivisions would [not] have to expend any of their own financial resources to perform activities contemplated under the [NCLB].”[1] The Attorney General advised, however, that the viability of any action “would depend heavily on what is actually occurring in Wisconsin” and that “[e]ach school district, individually, will have to determine the financial impact of [NCLB] and whether complying with [NCLB] requires it to expend monies not provided in the law.”  In other words, Wisconsin school districts had to determine NCLB compliance costs before any lawsuit could realistically succeed.

Connecticut became the first state actually to file suit challenging the Secretary of Education's “rigid, arbitrary and capricious interpretation of NCLB mandates.” In August 2005, the State of Connecticut and the General Assembly of Connecticut filed suit in federal court alleging that the Secretary of Education was violating both the Unfunded Mandates Provision of the NCLB and the Spending Clause of the U.S. Constitution by requiring the State and its school districts to comply with the additional testing requirements imposed by the Act without providing sufficient federal funds to pay for such compliance. Connecticut alleged, among other things, that the Secretary had suggested to Connecticut's Commissioner of Education that Connecticut pay for the additional NCLB testing by substituting lower quality tests for elementary school children and diverting federal funding from other programs, such as reading tutors for inner city youths (Complaint, 73-76). It is expected that the Secretary will move to dismiss Connecticut's action.

A number of school districts around the country and the National Education Association joined forces in April 2005 to file suit against the Secretary of Education detailing the unfunded expenditures that districts were being forced to make, allegedly in violation of the Unfunded Mandates Provision of NCLB and the Spending Clause of the U.S. Constitution. Among other complaints, the NEA lawsuit detailed some of the negative consequences being played out in districts around the country, such as cutbacks in gifted programs and the elimination of social studies and writing tests.  The Secretary has moved to dismiss the complaint, contending that none of the plaintiffs in the lawsuit have suffered an injury that can be redressed by the court and that they are misinterpreting the Unfunded Mandates Provision.  The case is currently pending before Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan, the Pontiac, Michigan school district being the lead plaintiff in the case. 

Another approach was taken by the Reading, Pennsylvania school district in challenging the requirements of NCLB.  After six of its twenty schools were found to be In Need of Improvement, the district undertook a cost study and determined that although it would need $26 million for the 2003-04 school year in order to bring the schools into compliance, it would receive only $8 million in Title I money to meet those requirements.  The District asked the state for additional funds to meet the shortfall, but no response was received.  Instead, the Pennsylvania Department of Education informed the District that the District as a whole and the 6 schools had failed to meet AYP and would be sanctioned for the 2004-05 school year.  The District appealed to the Department, arguing that the Department had imposed an unfunded mandate, that it sanctioned schools that had not received federal funds to implement the act, that it failed to provide assessment tests in Spanish, and that it had failed to provide mandatory technical assistance to the 6 schools that had been sanctioned.   The Department denied the appeal, citing its policy that appeals of its decisions could be taken only on the basis that the underlying data were incorrect, that significant growth had been made toward meeting the goals, or that unforeseeable circumstances beyond a district's control prevented it from achieving AYP. The District then challenged the Department's dismissal in state court. In June 2005, the Commonwealth Court of Pennsylvania ruled that the District's due process rights had been denied by the Department's restrictive appeals process that intentionally misinterpreted the NCLB to limit appeals (Reading School District v. Department of Education, 875 A.2d 1218, 2005 Pa.Commw. LEXIS 298 (2005)). The court remanded the case for further consideration by the Department, but the Department has appealed to the Pennsylvania Supreme Court.  The District, in the meantime, has sought a stay of sanctions until the appeal is heard and decided. 

Conclusion: In order to have any meaningful discussion regarding the cost of NCLB, and the role of the federal government in funding that cost, it is essential to first understand the true cost of educating students to meet state standards. Education adequacy cost studies have assessed these costs, and have revealed that meeting state educational standards requires on average a 27.5% increase in a state's educational budget. This amount of money far exceeds to the amounts authorized or appropriated under NCLB. Without adequate resources, it is doubtful that students will be able to meet state standards.  Underfunding of NCLB will likely be a major focus of an anticipated backlash against the law when state legislatures reconvene in early 2006.

VII. Conclusion

NCLB is a powerful national statement that the achievement gap is a national concern and must receive national attention. However, serious questions have been raised as to whether the methods prescribed by NCLB measure student achievement and school quality accurately and address deficiencies sufficiently. Programs previously proven to raise student achievement, such as high quality preschool and equal distribution of high quality teaching, are not in the law, while unproven transfer provisions are prominent. Moreover, the law has been funded at a level not related to the true cost of achieving state educational standards. There is a concern that if students are required to attain standards without being provided the basic resources needed to learn, we will be leaving millions of children behind, thereby undermining the laudable goals of NLCB.

[1] Letter from Peggy A. Lautenschlager, Wisconsin Attorney General, to Fred Risser, Wisconsin State Senator 8 (May 12, 2004)

Useful Resources on NCLB