Education Standing Committee

September 5, 2007

The Honorable George Miller
Chair, Committee on Education and Labor
U.S. House of Representatives
2181 Rayburn house Office building
Washington, DC 20515-6100

The Honorable Howard McKeon
Ranking Member, Committee on Education and Labor
U.S. House of Representatives
2181 Rayburn house Office building
Washington, DC 20515-6100

Re: Staff discussion draft of Title I of ESEA

Dear Chairman Miller and Ranking Member McKeon,

I am writing on behalf of the National Conference of State Legislatures (NCSL) in response to the staff discussion draft of the reauthorization of Title I of the Elementary and Secondary Education Act (ESEA) released on August 27, 2007 by the Committee. State legislators, who have the constitutional responsibility to establish and fund the nation’s system of public education, have a compelling interest in the reauthorization of this statute. We have chosen to respond to this draft by comparing it to the recommendations of the NCSL Task Force on No Child Left Behind, issued in February 2005.

The initial section of the NCSL Task Force report is concerned with creating a productive and efficient role for the federal government in what has traditionally been an area of public policy funded and administered by the states. The Task Force recommends fixing the law and at the very least, adequately funding the process and compliance requirements before considering additional federal requirements for states, districts and schools.

Unfortunately the staff draft significantly expands the federal role in education by creating new programs and data reporting requirements. The draft creates a graduation promise fund, adds college and work ready assessments, requires the development of longitudinal data systems, expands the graduation data requirements, adds non-academic “barriers” reports to the state plans, raises new requirements for LEA reporting (on suspensions and expulsions), and creates a mandate that states provide teachers in schools missing adequate yearly progress (AYP) with high-quality professional development. Additionally, the draft mandates states to establish a system of intensive technical assistance for troubled schools and districts and inserts the federal government into teacher assignments and state school finance formulas. It requires states to develop language specific achievement tests and “appropriate” assessments for students with disabilities within two years of enactment or face the possibility of losing up to 25% of state administrative funds for either infraction. These provisions add a dizzying array of new requirements on top of the existing requirements of the law with little commitment to fund either the current or the additional mandates adequately. We suggest that the Committee review Chapter 1 of the Task Force findings in the attached summary.

The second set of concerns identified in the NCSL Task Force report question the validity of Adequate Yearly Progress, as a metric of student achievement. The Task Force recommends wholesale changes to AYP to accurately reflect student, not school, performance.

The staff draft includes an encouraging list of AYP issues to be addressed, including the inclusion of multiple indicators, a “growth model” of student achievement, the recognition of levels of “failure” instead of an absolute pass/fail system and a differentiation and expansion of the consequences for failing to make AYP.

However, each of these proposals has serious shortcomings. The multiple indicators provision allows states to use measures other than standardized tests to determine AYP attainment but limits the impact of these other measures to 15% for elementary school achievement levels and 25% for high schools. The “growth model” hybrid--considered by psychometricians to not rise to the definition of a true growth model--adds a growth component to the achievement equation but continues to require absolute attainment of proficiency by 2014 for all students in each subgroup--a goal that is admirable but unachievable according to the Task Force. The new designation of “Priority Schools” and “High Priority Schools,” along with the expanded list of possible corrective consequences for failing to make AYP for each category, addresses the issue of differentiation for levels of performance. However, it obscures additional process requirements that states must comply with such as “ensuring that no student in a school that misses AYP is taught for two consecutive years by a novice or out-of-field teacher.” This last provision, coupled with the “comparability” provisions, would greatly expand the reach of the federal government into state and local school financing and funding formulas related to teacher assignment. We would prefer a wider range of suggestions that are identified in Chapter 2 of our Task Force summary.

The NCSL Task Force concerns for students with disabilities (SWD), and English Language Learners (ELL), focus on the discrepancy between federal statutes (NCLB v. IDEA) and the realities of the idiosyncratic nature of ELL student backgrounds. The Individuals with Disabilities Education Act (IDEA) requires teaching to the students’ level while the testing requirements of ESEA require testing to chronological grade level. For ELL students, current law fails to differentiate between language acquisition and academic achievement and expects foreign born and/or foreign speaking students to perform at grade level and in English in a remarkably short period of time.

The staff draft proposal would codify a number of regulatory “fixes” already in place such as the identification of 1% of students for out-of-level testing and the flexibility to identify an additional 2% of students for modified testing. We applaud the decision to allow for an additional 1% for modified testing. However, the fact remains that special education students are taught at the level determined by the IEP and tested (with the above exemptions) at grade level. The ELL changes similarly codify some of the existing flexibilities already granted and expand the options for states in addressing ELL needs. However, the inclusion of new mandates for states to develop native language assessment instruments within two years of enactment is expensive and unrealistic. According to the Task Force summary, IDEA provisions should always trump ESEA/NCLB and states should have the discretion to determine when to administer native language or English-only tests.

We applaud the efforts of the Committee to include in the staff draft many of the issues of concern to state legislators. However, we are concerned that many of the fixes included in the staff draft are superficial and unnecessarily complex. For example, it makes sense to address the problems of AYP, but psychometricians from across the country have identified AYP as the weakest link in the accountability chain that requires major overhaul, not just tinkering. In addition, what sense does it make to fix complex problems by generating new mandates and reporting requirements for states and districts that make ESEA requirements more complicated rather than less so?

In short, we believe that the staff draft touches upon the problems of ESEA without solving the fundamental problems of the law. ESEA remains an admirable goal so wrapped in process and compliance that it fails to focus on outcomes and achievement. This draft, while commendable in its scope, assumes that the ESEA iteration commonly referred to as No Child Left Behind is in need of minor amendments. The NCSL Task Force on NCLB concluded otherwise. We therefore urge you to take a deliberative look at the findings of the NCSL Task Force and consider the inclusion of its recommendations in the draft put forth by the committee itself. We stand ready to assist in any way that we can to make ESEA a more effective tool that enhances student achievement and closes the achievement gap.

Thank you for your consideration of NCSL’s positions. For additional assistance and information, please have your staff contact David Shreve (202-624-8187 or david.shreve@ncsl.org).

Sincerely,

Representative Donna Stone
Delaware House of Representatives
President, NCSL

Click here to view the Key Recommendations from the NCSL Taskforce on No Child Left Behind (NCLB)

Click here to view NCSL Official Policy