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Education Reporter

Resistance to NCLB Mounts, But
Suits and State Laws Appear Futile
Utah Passes Defiant Law; NEA Sues; Texas Fined
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Critics of the federal No Child Left Behind law can point to a series of recent clashes between states or teachers unions and the federal government as evidence of a groundswell of resistance to the sweeping new federal mandates in the law. While conflict makes for dramatic headlines, the resistance seems more symbolic than substantive. It is unlikely to have a real impact inasmuch as states are loath to part with the federal funds that come with NCLB strings attached.

In May, Utah Gov. Jon Huntsman signed a bill passed by the Republican-led Utah legislature stating that the state's own educational accountability plan takes precedence over NCLB, and authorizing state education officials to ignore provisions of federal law that conflict with the state's program. Utah's method of measuring student achievement compares performance as students progress from grade to grade. NCLB compares test scores of students to students in the same grade level from previous years.

U.S. Secretary of Education Margaret Spellings warned before passage that the Utah bill seems "designed to provoke noncompliance" and jeopardizes some $76 million in annual federal money. But Utah Superintendent of Education Patti Harrington subsequently vowed that Utah will "remain absolutely compliant" with NCLB (Education Week, 4-27-05), so it is hard to see what the fuss is about.

Hard on the heels of Utah legislature's action in April, the National Education Association plus ten affiliates and three school districts sued U.S. officials in federal court in Detroit, arguing that NCLB is being implemented illegally because federal underfunding has forced states to use their own money to carry out its mandates. NCLB specifically states that "Nothing in this act shall be construed to . . . mandate a state or any other subdivision thereof to spend any funds or incur any costs not paid for under this act."

No state joined the NEA's suit, but Connecticut Attorney General Richard Blumenthal subsequently announced interest in filing a separate lawsuit against the Education Department on similar grounds.

No lack of federal money 
Both suits face an uphill battle. The states receive on average $1,000 in federal money per student, and they will be hard-pressed to show that compliance costs exceed that figure. Three independent studies and two General Accounting Office reviews have shown that federal funding more than covers the costs of implementation. Moreover, federal support for K-12 schooling has risen by nearly two-thirds since 2001, and participation in that funding is optional. (Wall Street Journal, 4-25-05)

The NEA's own general counsel stated in a confidential memo two years ago that NCLB is a mandate only if states accept federal education funds, a position that undercuts the union's argument in its lawsuit. (Washington Times, 5-1-05)

Also in April, the Education Department announced it would withhold $444,282 of federal money from Texas because state officials failed to meet the deadline for informing parents of their right to transfer their children out of struggling schools. It represented the third and largest such fine imposed by the department.

Five other lawsuits have been filed in federal and state courts around the country concerning certain provisions of NCLB. Three have been dismissed so far.

The California legislature passed a resolution last August criticizing NCLB and calling on Congress to exempt California schools from key provisions of the law. The measure contends that NCLB duplicates state accountability standards and penalizes schools with low-income and minority enrollments.

'Excessively intrusive' 
The National Conference of State Legislatures issued a report in February assailing NCLB as a flawed, convoluted and unconstitutional reform effort that usurps state and local control of public schools. "Under NCLB, the federal government's role has become excessively intrusive in the day-to-day operations of public education," the bipartisan panel declared. Complaints centered on the law's accountability system, which punishes schools whose students fail to improve steadily on standardized tests.

Notwithstanding the sound and fury from legislators, the public strongly supports NCLB's requirements and doesn't want to see its goals diluted, according to a report issued in March by the Public Education Network. In nine public hearings in eight states, some concerns did surface: giving grade-level tests to students with disabilities, the stigma of labeling a school as failing based on a test, and the sacrifice of higher-level courses for honors or gifted students in favor of remedial work for low performers.

Secretary Spellings has already signaled that testing of students with disabilities will be modified, and if states are raising student achievement her department will be more flexible on compliance details.

Evidence of progress 
Some progress in student achievement has in fact been observed since NCLB. Improved student achievement was reported by 36 out of 49 states and 72% of 314 districts surveyed by the Center on Education Policy. Gaps between minority and white students are also narrowing, according to the report released in March.

Urban districts continued to show academic progress last year, concludes a report by the Council of the Great City Schools issued in late March. More than half the 4th-graders in the districts examined scored at or above the "proficient" level on mandated reading and mathematics tests for the first time since NCLB was signed three years ago. Seven in 10 cities improved math scores in all grades tested in 2004, up from just under half in 2001.

One of those cities, Philadelphia, saw some of the most significant test-score gains. Paul G. Vallas, head of the Philadelphia schools, said that NCLB has helped his and other districts produce better results by focusing them on instruction and holding them accountable for improving it. (Education Week, 4-6-05)

NCLB's major goal is to bring all students to proficiency in reading and math. The law requires states to test annually in grades 3 through 8 and disclose the results according to race, income, language and disability status. Students in failing schools may transfer to a better school and receive tutoring from outside the school system. NCLB passed Congress overwhelmingly.

The right to transfer appears to be the least successful aspect of the law. Only 1% of eligible students actually transferred to a higher-performing public school last year, and Secretary Spellings has found it necessary to allow districts to refuse transfers if they lack space in high-performing schools.

Tutoring is a way out 
However, the right to transfer has become less significant since under NCLB low-income parents in persistently underperforming schools may now request tutoring at federal expense. Tutoring is picking up, with 11 states reporting that 20% or more of eligible students received supplemental educational services last year. (Education Week, 3-23-05) The tutoring option is still new, and districts have much work to do in notifying parents and arranging to make qualified tutors available.

Tutoring offers some advantages over a change of schools, including one-on-one instruction and the possibility of private-sector, non-union tutors. Tutors must be on a state list of approved providers. So far more than 1,000 providers have secured places on state lists, of whom 63% are based in the private sector. (Education Week, 2-25-04)

Still to be dealt with is NCLB's blunt instrument of requiring "adequate yearly progress" in test scores by all subgroups, which has been justly criticized as rigid and impractical. A prediction: If those requirements are unworkable, the Education Department will figure out a way to relax them.

For additional history of states' and union officials' objections to NCLB, see Education Reporter, Apr. 2004.

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