As NCLB Ups the Ante, States Seek Flexibility
The 2005-06 school year represents marked jumps in
states’ requirements under NCLB. States must begin
testing students in every grade, from grade three through
eight. Additionally, 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 both the higher passing rates demanded in the coming
year and the challenges already faced in implementation
to date, several states have requested more flexibility
or waivers from the federal government in implementing
NCLB.
Connecticut and Virginia
Virginia’s superintendents’ association
has endorsed legislation directing the Board of Education
to request a waiver from all NCLB mandates, contending
that the state’s own accountability plan is working
well. In the event the legislation is not passed, the
association has endorsed the flexibility
measures approved last week by the Virginia Board
of Education.
Connecticut and Virginia are seeking flexibility in
four general areas of NCLB implementation: (1) testing
for English Language Learners (ELLs); (2) testing for
Students with Disabilities; (3) yearly testing and calculating
Adequate Yearly Progress; and (4) the consequences for
schools and districts labeled “in need of improvement.”
English Language Learners
Under NCLB, English Language Learners must take assessments
in mathematics, reading/language arts and English proficiency.
There are two exceptions to this requirement: (1) students
in the country for one year or less are not required
to take the reading/language arts test and (2) the math
scores for students in the country for one year or less
will not be counted for Adequate Yearly Progress (AYP)
calculations. According to the law, ELL students may
take the tests in their native language, however most
states have not developed tests in other languages.
In a January 14, 2005 letter
to Education Secretary-designate Margaret Spellings,
Connecticut Commissioner of Education Betty Sternberg
noted that Connecticut has students who speak 160 native
languages and therefore developing these tests in their
native languages would cost tens of millions of dollars.
Additionally, she pointed out that if developing English
skills is the aim of the law, testing students in their
native language would “miss the point, ”
as would testing the children in English only one year
after they arrived in the country.
Consequently, Connecticut has requested that ELL students
be exempted from NCLB testing for up to three years,
so that these children can learn English prior to being
tested. Similarly, Virginia’s Board of Education
voted to request an exemption from testing for students
in the country for one to three years. In addition,
Virginia will request that ELL kindergarteners and first
graders, all of whom must be tested for English language
proficiency under NCLB, be exempted from the requirement
of taking tests involving reading and writing. The state
wants to test their speaking and listening skills only.
Students with Disabilities
Connecticut has also requested more flexibility regarding
assessments of students with disabilities. Under NCLB,
only some students with the most serious cognitive difficulties,
amounting to no more than 1% of a school’s student
body, may take alternative tests. All other students
with disabilities must take grade-level tests. States
are finding increasing conflicts between NCLB, which
requires that virtually all students meet the same targets,
and the Individuals with Disabilities in Education Act
(“IDEA”). IDEA is a long-standing federal
law which mandates that students with disabilities receive
individualized instruction and assessment under and
Individualized Education Plan (“IEP”) developed
in compliance with IDEA. Dr. Sternberg notes in her
letter that the tests required under NCLB often conflict
with requirements under IDEA. Connecticut has requested
a return to out-of-level testing for students when their
IEP teams so determine. Virginia will also request a
return to out-of-level testing for those students with
disabilities who are one to three levels below grade
level, and for students making at least one grade level
improvement to be counted for AYP.
A school district in Illinois is taking a different
approach to the NCLB-IDEA conflict. The Ottawa School
District is suing the federal government to invalidate
NCLB to the extent it determines that a school or subgroup
has failed to make AYP when the IEP is not consistent
with the AYP target for a particular student. Ottawa
claims that students’ rights under IDEA preempt
NCLB requirements.
Yearly testing and AYP
For the past twenty years, Connecticut has tested students
in grades 4, 6 and 8. Dr. Sternberg has requested a
waiver from testing in grades 3,5, and 7 because, as
she states, more testing will cost millions of dollars
and “will tell us nothing that we do not already
know about our students’ achievement and what
we must do to improve it.” The Commissioner suggests
using resources instead in other ways to improve student
achievement, for example, to develop assessments that
are more helpful in targeting and modifying instruction.
Virginia seeks more modest adjustments that center
more on the calculation of AYP. Virginia will request
that the minimum number for a subgroup be raised from
50 to one percent of the district for larger school
districts. In addition, it seeks to change the label
of “in need of improvement” to cover only
those schools that fall short of AYP targets in the
same subject and the same subgroup for two consecutive
years; and for only those districts that fall short
of AYP targets in the same subject, subgroup and all
grade spans for two consecutive years.
NCLB Consequences for Schools
Under NCLB, if a school or district fails
to reach one or more of dozens of AYP targets in
two consecutive years, the school must offer and pay
for the option of transferring to a school that made
AYP to all students in the school. If a school/district
misses any AYP targets in a third year, that school/district
must offer and pay for supplemental educational services
(“SES”) to be provided to all students.
After the third year, schools and districts face more
drastic consequences, such as restructuring, firing
of most or all personnel, and private or state takeover.
Connecticut’s Education Commissioner has suggested
refocusing the consequences of NCLB in order to make
them “more conducive to real and constructive
change.” Her proposals
for schools in their fourth year of being “in
need of improvement” include: (1) preschool, since
a low percentage of children in these schools have attended
preschool; (2) family resource centers with a targeted
focus on the learning needs of parents so that they
help improve their children’s academic skills;
(3) incentives to retain outstanding teachers, support
staff and administrators, such as reduced class size
and financial incentives to teach in struggling schools;
and (4) a longer school day and year.
Virginia is seeking a shift in the existing sanctions.
The state has decided to request the option of offering
both transfer and supplemental educational services
only to those students in subgroups that fall short
of the performance targets. In addition, the state seeks
to give schools the option of offering SES before offering
transfers.
Virginia has yet to make the official requests to the
U.S. Department of Education (“ED”). The
Department of Education has not yet responded to Connecticut’s
letter.
Missouri and Florida
Many states, including Missouri and Florida, must raise
their proficiency targets for the coming school year.
There is a fear in these states that as the proficiency
targets rise, more schools will miss their AYP targets
and ultimately face NCLB sanctions. In response to this
fear, Missouri requested authorization from ED to lower
its percentage of students who must meet proficiency
in order to make AYP: in language arts from 38.8% to
26.6% and in math from 31.1% to 17.5%. Missouri officials
had expressed concern that the higher targets were unachievable
at this time and would cause despair among educators
and students. The U.S. Education Department approved
Missouri’s request.
Florida is facing a similar situation. A recent study
commissioned by that state’s superintendents concluded
that if the 2005 targets are imposed, 90% of schools
will fail to make AYP. Last year, 77% of Florida schools
fell short of AYP goals. Many of these schools were
judged to be “excellent” under separate
Florida standards. As a result of the study the superintendents
association is advocating lowering the proficiency target
to a level at which two-thirds of the schools would
make AYP. NCLB requires that 100% pf all students reach
“proficiency” by 2014. Therefore, the states
that have lower proficiency targets now will have to
make larger jumps in proficiency in the later years
of NCLB implementation.
Prepared by Wendy C. Lecker, January 27, 2005
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