Reading School District v. Pennsylvania Department of Education

The School District of Reading, Pennsylvania, is challenging several provisions of the No Child Left Behind Act, in response to the designation of 6 of its 19 public schools for sanction status after failing to make "adequate yearly progress" and an additional 7 schools as on a "Warning List" for sanctions if they fail to make adequate yearly progress in the 2003-2004 school year.

Reading, Pennsylvania, is a city in dire financial straits. According to a January 2, 2004 New York Times article, its property tax revenue declined from $33.8 million to $22.3 million in the last eight years. Its school district spends $2,000 less per student than the average Pennsylvania school district. The Reading District has one of the weakest tax bases in Pennsylvania and is currently operating in a deficit position. (Petition, at 7D) However, the population of Reading has surged, including new students who are of limited English proficiency. Sixty-four percent of Reading's school population is Latino. Eleven percent of its student population is classified as having "limited English proficiency." (Petition, at 7A-7B).

In accordance with the requirements of the No Child Left Behind Act ("NCLB"), the Pennsylvania Department of Education submitted a "report card" detailing the "adequate yearly progress" of its school districts. In Reading, 13 of its 19 public schools were cited for either sanction status or warning status for future sanctions. The Reading School District appealed the designations. The Pennsylvania Secretary of Education denied the District's appeal on November 17, 2003. On December 11, 2003, the District filed a petition for review of this decision in the Commonwealth Court of Pennsylvania, which has jurisdiction over appeals of administrative decisions.

The Reading School District has challenged the Department of Education decision on three grounds. The District claims that the State: (1) did not justify the size of the disaggregated groups required to make adequate yearly progress under the NCLB; (2) failed to provide it with tests in Spanish so that it may properly evaluate the "adequate yearly progress" of its students who are of limited English proficiency; and (3) imposed an "unfunded mandate" on the District by failing to provide technical assistance, including direct financial assistance, needed by the District to fulfill its mandates under the NCLB.

Size of Disaggregated Subgroups

The No Child Left Behind Act requires that school districts and individual schools report "adequate yearly progress" of students overall and in various disaggregated subgroups. 20 U.S.C. Section (b)(2)(C)(v)(II). The Act and the Federal Regulations implementing the Act give the states flexibility in determining the size of the subgroups. The Federal Regulations mandate only that each state must determine the minimum number of students in a subgroup "based on sound statistical methodology," and that the minimum number must be "sufficient to yield statistically reliable information for each purpose for which disaggregated data are used." 34 Code of Federal Regulations Section 200.7.

The size of a subgroup may be critical in determining whether or not such subgroup makes adequate yearly progress and, consequently whether a school or school district is or is not sanctioned. As stated in the Pennsylvania NCLB Accountability Workbook, a subgroup that is too small runs the "substantial risk of identifying groups as not making 'adequate yearly progress' on the basis of chance rather than real underperformance." The Workbook further notes that "that risk increases when a school or LEA (local educational organization) has multiple subgroups." The Pennsylvania Workbook describes a subgroup of 100-200 children as being small enough to risk such an unreliable result. However, the Pennsylvania Workbook noted that a group of 100-200 may eliminate schools or subgroups, and the State has an interest in including as many schools and subgroups as possible. Therefore, the State chose 40 as the subgroup number.

Owing to the diversity of the population in Reading, virtually all the schools are composed of subgroups as defined by the NCLB. Therefore, its district is precisely the type described in the Pennsylvania Workbook as one whose subgroups' assessments may result in an unreliable designation of failure; one that is not representative of the subgroups' true achievement. The District is challenging the 40 member group size, and has charged that the State must justify this size statistically.

Evaluation of Adequate Yearly Progress in Spanish

Under the NCLB, States must devise tests to assess the progress of children who are not yet proficient in English. The law provides that, to the extent practicable, States must administer such a test in "the language most likely to yield an accurate measure of what students know and can do in academic content areas." 20 U.S.C. Section 6311(b)(3)(C)(ix)(III). If a State needs assistance in developing such a test in a foreign language, it may request assistance from the Federal Department of Education. 20 U.S.C. Section 6311(b)(6). The Reading District charges that the State of Pennsylvania has failed to provide examinations in Spanish, as required by the NCLB. This alleged failure is of particular importance in the Reading School District, because 11% of its students have been identified as having "limited English proficiency."

Unfunded Mandate

Section 7907(a) of the No Child Left Behind Law asserts States and any subdivision of the states, including school districts, are not mandated to "spend any funds or incur any costs not paid for under this act." In other words, a school district is not required to spend any additional funds not provided by the federal government in order to meet the requirements of the No Child Left Behind Act. The Reading District, which is already operating at a deficit, claims that by requiring the District to adhere to mandates of the NCLB, as defined by the State of Pennsylvania, without providing any funds to enable the District to meet those mandates, the State has violated Section 7907(a) of the No Child Left Behind Law. In essence, the District charges that the State has imposed an "unfunded mandate" on the District in violation of the Act.

This case underlines some of the difficulties in implementing the No Child Left Behind Act. While the goals of assessing the progress of different demographic groups are laudable, states are encountering difficulties in data collection and in obtaining meaningful assessments of the students in those subgroups. In addition, the Reading case highlights what happens when districts without the means to run their own day-to-day operations must shoulder the additional costs of the federal law.

The next step in this litigation is the appeal in the Commonwealth Court of Pennsylvania.

Prepared January 12, 2004.