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Education Standing Committee

Click here for a printer friendly version of this NCSL letter to the White House on the No Child Left Behind Act. (Adobe Acrobat required)

August 26, 2003

Mr. David Dunn
Special Assistant to the President for Domestic Policy
464 Eisenhower Executive Office Bldg.
17^th & Pennsylvania Ave. NW
Washington, DC 20502

Dear Mr. Dunn,

Thank you very much for meeting with us on June 12, 2003 to discuss our concerns regarding the implementation of The No Child Left Behind Act. We appreciate the Administration's enthusiasm and commitment to our nation's children as well as your willingness to listen to our suggestions. This letter follows up on your offer to provide written suggestions to address our concerns through the regulatory process.

The following list is gleaned from the issues raised by legislators in their conversations with our staff, the questions they ask of presenters at our meetings and the concerns expressed in the policy discussions of NCSL's Standing Committee on Education. This list is not meant to be inclusive of all of the concerns of our membership, but we feel that it is a faithful representation of the discussions centering on the implementation of NCLB.

1. The U.S. Department of Education (USED) has publicly held that two-year consequences would apply to a school that has any sub-group fail in any subject in year one and any sub-group that fails in any subject in year two. This means for example that a school would be subject to consequences if special education students fail adequate yearly progress (AYP) math goals in one year and Hispanic students fail AYP reading goals in the next year. We recommend the following:
   
   Based on the flexibility granted to some approved state plans and not to others, flexibility in defining AYP in regard to subject and sub-group should be explicit in the regulations and extended to all states.
2. Since some states have negotiated substantially different definitions of what constitutes performance failure in their approved state plans, we recommend the following:
   
   Schools and districts should not be subject to "failure" status unless and until they have two consecutive years of poor performance by the larger groups (schools and districts) or smaller groups (disaggregated sub-groups) in the same content areas. For example, if disabled students fail to meet AYP reading goals for year one, make those reading goals for year two, while Hispanic students meet AYP math goals in year one but not year two, the school/district would not be subject to federal sanctions.
3. To date, some approved state plans define a "statistically significant sub-group" as low as five students or as high as 50 students. The consequences of these variations are striking. For example, the approved plan in West Virginia defines a statistically significant sub-group as 50. This means that 67% of school districts in West Virginia will not report black students and 81% of school districts will not report 'other races'. In Delaware, with a sub-group size of 40, it means 90% of schools will not report Hispanic students and 25% of schools will not report black students. We recommend the following:
   
   Publicize, explain the criteria for, and extend the broad flexibility granted to some states in determining the size of "statistically significant" sub-groups to all states through the regulatory process and make the implications of this information available to states immediately.
4. Approved state plans reflect a very broad state definition of proficiency. We applaud this flexibility. Colorado considers both "partially proficient" and "proficient" to mean "proficient" for purposes of complying with the federal law while other states (New Mexico) have taken a strict view of the definition of proficiency. This means that the AYP net will catch far more of New Mexico's schools than Colorado's, not based on actual performance but on each states' interpretation of "proficiency". We recommend that federal regulations:
   
   Explain and initially extend to all states the broad definitions of "proficiency" and encourage states to review the definitions in their plans to ensure states maximize their chances to meet AYP targets.
5. In calculating the state schedule for meeting the goal of 100% proficiency for all students in reading and math by 2014, state plans have proposed and the USED has approved dramatically different paths toward that goal. Many approved plans commit to very modest improvements in student performance in the first six or seven years with a significant (and possibly unattainable) increase in student performance for the final six or seven years. This makes a huge difference in how many schools within a state would be caught in the AYP net. For example, Delaware commits to increasing student proficiency from 30% to 46% in the first seven years, with a subsequent increase in the final seven years from 47% to 100%. Because the federal sanctions for schools caught in these varying commitments are severe and the USED has indicated a hard line in applying sanctions to states, the consequences are unfair and uneven. We recommend:
   
   An explanation and codification of the flexibility available to states in committing to final proficiency goals.
6. Districts and states can be considered failing if fewer than 95% of students take assessments at the scheduled day and time or if fewer than 95% of any sub-group participates in the test. While average daily attendance (ADA) across the country is approximately 95%, average attendance in schools with a high percentage of poor and minority students is substantially less than 95%. The possibility of flu or other disease outbreaks hitting a school, district or state is accounted for in the law but the 95% threshold is unrealistic and unnecessarily punitive for schools with a lower average attendance rate. We recommend:
   
   That the regulations define or have states determine participation as based on the lowest ADA figure for any given month in the school year while establishing 95% as the target participation rate. This would allow the states to calculate the 95% based on their own average attendance or the average of any given school or district.
7. The inclusion of limited English proficiency (LEP) and special education students in the calculations for AYP is inherently contradictory. By law and practice, special education students have standards established in their individualized education plan (IEP) by which they are evaluated. Holding IEP students to the same standards as other K-12 students means that nearly every school, district and state with any significant IEP student population will fail to meet AYP goals. If an IEP student does meet the AYP goals, he or she would no longer be in special education and would no longer count toward the goal of 100% proficiency for that sub-group. In any case, schools, districts and states will have a huge AYP failure rate just for IEP students. The case of LEP students is similar. All LEP students will "fail" their AYP goals until they pass their fluency test at which point they are no longer LEP students. Therefore, no LEP student, in the strict interpretation of this provision, will ever meet AYP goals. We recommend that:
   
   Federal definitions in the regulations permanently exempt IEP and LEP students from AYP calculations, or
8. Federal regulations allow states to calculate performance individually for members of these sub-groups, then calculate the average performance increase. This would mean that scores of individuals who have successfully moved into the regular classroom the following year might be included in the progress rating. (We understand that some flexibility has already been granted for LEP carryover and want this expanded to include IEP students.)
9. NCLB requires that testing requirements apply to all students in the full academic year. Some state plans have narrow definitions of what constitutes a full academic year, others have a broad definition of the same. We applaud the flexibility NCLB offers in this area. However, the definition creates another area of inequitable and uneven implementation. The broader the definition, the more a school, district and state "buys" the performance of students who have not been in their system. We recommend that:
   
   Federal regulations convey to states the flexibility granted to some states in their approved plans and codify the range of definitions and the consequences of the definitions used for calculating AYP.
10. For purposes of determining whether or not teachers meet the definition of highly qualified, we recommend:
    
    Students demonstrating adequate yearly progress in the classroom should be recognized as proof of a highly qualified teacher in that classroom, whether or not that teacher has a college concentration in the subject matter.
11. In regard to meeting the requirement that supplemental services be provided for Title I students in schools failing to meet AYP for 3 consecutive years, we recommend that:
    
    Distance learning options (utilizing technology), already offered to some states, are expanded as a legitimate option.
12. For purposes of data collection and reporting, we recommend that:
    
    States are quickly offered the option to use the "database software" provided by the U.S. Department of Education. This would eliminate the development costs for data systems and lessen the exposure of the Department to legal actions for insufficient funding.
13. The Department has insisted that states make AYP determinations prior to the beginning of the next school year so that parents have sufficient notice to exercise school choice and supplemental services options. This is problematic for states, especially those with year-around schooling or those where state law offers districts the flexibility to determine school start and end dates. The reporting pressure limits states' ability to utilize more than simple, machine scored tests and sharply reduces or eliminates the use of open-ended and constructed response test items. We recommend that:
    
    USED explore and convey to all states options for allowing flexibility in reporting requirements. This will ensure the continued development of more accurate test instruments.
14. Starting points for AYP calculations are based on an average of students statewide, and therefore ignore the range of starting points for schools and sub-groups within the stated average. The Department has generally not allowed different starting points, but some exceptions have reportedly been recently granted. We recommend that:
    
    All states be informed of the flexibility for establishing starting points and be encouraged to amend their plans if they so choose.
15. Student membership in groups and sub-groups is often overlapping and causes an over-representation of the lowest performing students because they are counted as a "full student" in each of the groups. For example, a poor, minority special education student, when counted as a member of each group, impacts the ability of each group to make AYP. We recommend that:
    
    The regulations reflect a state option to apportion student membership in each group. In the example above, the student would be counted as .33 membership in each group.
16. Many states have laws permitting parents to "opt-out" of state testing for personal, privacy or religious reasons. The Department's position has been that states cannot exclude those students who exercise this right when determining the state participation rate or the other accountability provisions of NCLB. We recommend that:
    
    USED respect the rights of students and their families to exercise this option and the right of states to exclude those students from any calculations related to NCLB.
17. Many states consider a successful recipient of a GED as a "graduate" of their secondary system. USED has not allowed this definition thus far in its plan approvals. We recommend that:
    
    The regulations reflect the states' definitions of GED attainment as a successful graduate of secondary school.

Reports coming out of state meetings with the U.S. Department of Education reveal that negotiation is the pivotal factor in having a chance to meet the ambitious goals of NCLB. As a result, the state plans vary markedly and policy decisions reflected in one state's plan may not have even been considered in another's. The aggressive implementation schedule of NCLB has left most states with little opportunity to consult with their counterparts regarding flexibility. Some states, depending on their negotiating success with USED, may face a distinct disadvantage in meeting the requirements of the law.

We appreciate your interest and efforts in improving public education for all students in America and pledge our support in working with you to solve the concerns regarding implementation. Through working together we believe we can foster a relationship which will be helpful to all Americans in our quest for a better education system in our country, and one which can carry over to solving many of the difficult problems which face our states and the nation. We will make ourselves and the members and staff of NCSL available to continue our discussions at your earliest convenience.

Sincerely,

Speaker Martin Stephens
President, NCSL
Utah House of Representatives

Delegate John Hurson
President-Elect, NCSL
Maryland House of Delegates

Senator Pamela Redfield
Chair, NCSL Standing Committee on Education
Nebraska Senate

Cc: Mr. Jim Kelly; White House Office of Intergovernmental Affairs