Senate HELP Committee Hearing “Beyond NCLB: Views on the Elementary & Secondary Education Act” – NCSL Prepared Testimony for the Record

November 8, 2011

Dear Chairman Harkin & Senator Enzi:

We are writing on behalf of the National Conference of State Legislatures (NCSL) both in response to recent legislation reauthorizing the Elementary and Secondary Education Act (ESEA) that passed out of the Senate Health, Education, Labor and Pensions Committee and to present the views of the nation’s state legislators as you discuss the current iteration of ESEA, No Child Left Behind (NCLB), in today’s hearing.   NCSL’s policy on ESEA reauthorization is attached for your reference.

Because state legislators have a constitutional responsibility to establish and fund public education, they have a compelling interest in the reauthorization of this statute.  In February 2005, NCSL’s bipartisan Task Force on No Child Left Behind issued a report that recommended changes to the law, and discussed 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 law is now almost 10 years old and has not been reauthorized.  Reauthorization of this statute will allow all states to benefit from corrections to the current law.

First and foremost, we applaud the committee’s recognition that the Adequate Yearly Progress (AYP) metric based on achieving a 100 percent proficiency standard in reading/language arts and mathematics based on standardized tests was a flawed and static measure.  NCSL believes that the ability to focus on student growth over time, and the ability to use multiple measures rather than relying exclusively on standardized tests to evaluate performance, provides a more robust and appropriate measure of how schools are performing.  The committee’s approach of allowing states to set career and college ready standards is a more workable method, enabling states to build on the work they are already doing in content standards and on assessments.

The federal involvement in developing common standards and tests should be based upon and circumscribed by the language Congress used in Public Law 96-88 in 1979 to create the Department of Education, which did not include a directive regarding state allocation of their own funds, or for determining what paths states must follow to enhance student performance.  The true virtue of the standards movement is its genesis in the states and its adaptability to state-specific conditions.

One of the biggest problems with NCLB was that it was set up to over identify failing schools.  The Senate committee bill allows a focus on the lowest group of low-performing schools, which means scare resources can be targeted to the schools that most need additional assistance.  The bill is further enhanced by the flexibility offered to states to design a school turnaround plan that makes sense for its own schools.

We hope that as the bill comes to the Senate floor, Congress will continue to discuss the appropriate way to set academic content and achievement standards for special education students.   NCLB has required that special education students be tested at grade level, but the Individuals with Disabilities Act (IDEA), the federal law governing special education, mandates that these students be taught according to ability.  This is a basic conflict that presents difficulties for states as they seek to raise the achievement of all students.  NCSL is pleased that an amendment was adopted by the committee that allows special education teachers to be exempt from the requirements regarding highly qualified teachers.  Many special education teachers must teach multiple subjects and to require them to prove content knowledge in each subject is unrealistic.    Data collected as a result of NCLB requirements has given us a better picture of the academic performance of special education students, and we look forward to continued discussion about the best way to meet their needs.

NCSL is also pleased that the committee’s legislation contains some additional flexibility from NCLB provisions regarding highly qualified teachers.  There is no disagreement that well-prepared teachers with strong subject matter expertise can provide the kind of instruction every child needs.  However, NCSL supports common sense provisions in the committee bill that allow states and districts to deal with the realities of staffing classrooms.  These include allowing teachers of Native American, Native Alaskan and Native Hawaiian culture, language and history to be exempt from credentialing requirements that apply in other subjects, and allowing a teacher in a rural classroom to be supported by distance learning.  This is another area where we hope the discussion is beginning, not ending.

States are firmly committed to evaluating teachers and principals.  However, decisions about these evaluations and how they should be used are best left to the states, and NCSL appreciates that the committee did not require this.

NCSL remains concerned about possible federal incursion into state school finance formulas.    The committee bill requires that state education agencies develop and implement a plan to ensure that combined state and local per pupil expenditures are equal between Title I schools and other schools.  The complex issues around school finance equity are best resolved at the state and local level, and this action has implications for state funding formulas and finance laws.

While the legislation does not contain every change in NCLB that NCSL is seeking, it represents a mostly positive step in correcting some of the worst imbalances of a well-intended but flawed federal law.  We applaud the Senate HELP Committee for its work so far.  Knowing that many issues remain to be discussed when the bill comes to floor of the Senate, NCSL looks forward to continued refinement of this legislation.

For further information, please do not hesitate to contact NCSL state-federal affairs staff Lee Posey ( or Michael Reed ( or call NCSL’s D.C. office at (202) 624-5400.


The Honorable John Goedde
Idaho Senate
Co-Chair, NCSL Education Committee

The Honorable  Roy Takumi
Hawaii House of Representatives
Co-Chair, NCSL Education Committee
Attached: NCSL Policy: “Reauthorization of the Elementary & Secondary Education Act.”