NCLB Under Siege

(From CEC Today)

Perhaps no other education law has caused as much contention as the No Child Left Behind Act (NCLB). While few disagree with the law's goals, many fault NCLB's mandates, punitive nature, and fairness. From grumbling in the nation's teachers' lounges to state protests to lawsuits, educators are trying to redress the wrongs of NCLB - and they aren't willing to wait for the 2007 reauthorization to do it.

Special education, in particular, is a NCLB sore spot. Though special educators applaud accountability and improving educational outcomes for students with disabilities, NCLB's "one-size-fits-all" assessments have spurred widespread criticism, as does the fact that the assessment scores of students with disabilities caused some schools to be classed as "needs improvement." Educators also criticize NCLB on the grounds that it conflicts with the Individuals with Disabilities Education Act (IDEA).

But special education is only one area of dissention. Educators accuse NCLB of being an unfunded mandate, of giving federal law priority over state law, and of imposing redundant and costly testing on states. Lawsuits have been filed against the Department of Education over NCLB, and a couple of states, are considering defying the law - and foregoing federal dollars - to escape NCLB's stipulations. Also, the National Conference of State Legislatures issued a report recommending that a study be conducted to determine whether NCLB is an unfunded mandate and that states be allowed to decide the percent of students with disabilities to be tested at grade level.

In response to the growing movement against NCLB, the U.S. Department of Education this spring pledged a "more common sense approach." That approach includes the 2 percent flexibility option, which allows states to give alternate tests to an additional two percent of their student population, and it is granting states more leeway in meeting accountability plans. (To date, 25 states have received approval for some of their requested amendments to accountability plans, according to Kerry Briggs, senior policy advisor to the Deputy Secretary of the U.S. Department of Education.)

CEC supports many aspects of NCLB, such as ensuring students with disabilities are held to the highest standards, including these students in state and district-wide assessments, and accountability measures. At the same time, CEC has worked with ED to ensure that assessments for students with disabilities meet two goals: (1) students with disabilities are given appropriate assessments that reflect their individual educational goals and progress and (2) the results of those assessments are used appropriately for accountability purposes.

NCLB Mandates on Accountability Under NCLB, schools must test every student in math and reading in grades 3-8 and once in high school. The scores are reviewed annually, and schools are expected to make adequate yearly progress (AYP). By 2014, all students must be proficient.

The scores for groups of students, including students with disabilities, low-income students, racial minorities, and those learning English, are also examined and expected to improve. If just one category does not show adequate yearly improvements, the school is deemed as not showing adequate progress. Schools that do not show progress for two consecutive years can be labeled "needs improvement" and face sanctions.

Each state must submit an accountability plan to the federal government for approval that describes how it is carrying out NCLB's accountability provisions. States can request changes to their plans at any time.

NCLB Testing of Students with Disabilities - Source of Conflict Almost from its inception, NCLB's testing mandates have unleashed a maelstrom of passion, and nowhere was this more evident than in special education. Some special educators embraced standardized testing and pointed with pride to students with disabilities who scored "proficient" on standardized assessments. Others agreed with the concept of testing for accountability but opposed grade-level standardized testing for all students but the most cognitively disabled (1 percent of the students with disabilities). They found such testing inappropriate for students whose skill level ensured failure. Instead, they advocated for another form of testing that would show the progress their students made.

"Defining special education accountability partly in terms of academic performance is a welcome and necessary change in federal policy, says Doug Fuchs, professor at Vanderbilt University and a CEC Outstanding Research Award recipient. "Where raising the bar of academic performance for students with disabilities is very important, it is equally important to recognize the heterogeneity of this group of children. It is silly to think that the same performance standard will serve all special-needs children equally well. On the other hand, I fear that to set performance standards child by child is tantamount to no performance standards.

"Stakeholders and policymakers should initiate a process by which the question 'How much progress is sufficient?' should be rigorously discussed and relevant research that describes performance data of subgroups of the special-needs population should be part of the deliberations."

Some teachers whose students are the most cognitively disabled also fault the mandated alternate assessment exams, saying they deprive their students of time that would be better used for instruction in functional life skills such as telling time.

The outcry grew into a howl of protest when schools failed to make adequate yearly progress because of the scores of students with disabilities. Texas took the lead, challenging the 1 percent rule for its students with disabilities. Texas has given approximately 9 percent of its students with disabilities an alternate exam.

2 Percent Flexibility and Other Options In response to growing dissatisfaction, ED offered new options in May for the assessment of students with disabilities. At center is the 2 percent flexibility option for AYP. This allows states to develop modified achievement standards and alternate tests for students who can make "significant progress but may not reach grade-level achievement standards in the same time frame as other students." Only states that show they are already working to improve student achievement under NCLB are eligible for this option.

A majority of states have hailed ED's "common sense" approach, with a majority of states asking for ED's new flexibility on NCLB.

"Most states have responded positively to (the 2 percent flexibility option)," says Briggs. "States appreciate the need to develop a modified standard for some (students with disabilities) that better measure their achievement."

At publishing time, 31 states have received permission to implement the 2 Percent option, says Briggs.

In addition to the 2 percent flexibility option, states have sought a variety of additional means to ease NCLB's requirements. Some states have asked that they be allowed to include in their regular high school graduation counts students with disabilities and English language learners who need more than four years to finish high school. Other states' accountability amendment requests include asking that students with disabilities be allowed to take an alternate exam in a subject if they fail a state standards exam, permitting students to take tests more than once and count only their best score, and excluding some test scores of students with disabilities when determining whether schools have made AYP.

With these types of changes, ED says NCLB is both giving states needed leeway and ensuring students with disabilities receive a high quality education.

"No Child Left Behind is an opportunity for schools to understand that no subgroup should be left behind," said Troy Justesen, deputy assistant secretary, Office of Special Education and Rehabilitative Services. "When kids with disabilities show they need improvement, a focus needs to be made on their improvement...Assessment is an important measure for us to recognize where to apply resources."

CEC's Position on 2 Percent Flexibility  Though CEC supports the new interim flexibility, it also wants to ensure large numbers of students with disabilities are not denied access to the general education curriculum and high standards.

To meet that goal, CEC recommends a longitudinal growth model be included in the accountability system, which will allow more focus on individual student achievement. CEC also recommends replacing the law's arbitrary proficiency targets with ambitious achievement targets based on rates of success actually achieved by the most effective public schools. In addition, CEC recommends allowing states to measure progress by using students' growth in achievement as well as their performance in relation to pre-determined levels of academic proficiency.

While CEC supports the interim flexibility option with conditions, we remain cautious until we see the final regulations. Different standards for a "new category" would change the number of students eligible for alternate assessments and could take large numbers of students out of the mainstream curriculum - forcing them into an instructional category that won't allow them direct access to grade level content and preventing high school graduation with a regular diploma. Therefore, CEC supports the interim flexibility option if students with disabilities have highly qualified teachers, access to grade level content, and effective interventions that remediate deficits. CEC also says IEP teams should receive training to identify children in this group and determine which assessments are appropriate for them.

NCLB vs. IDEA It may be a first: a duel between education laws. Two Illinois districts, joined with some parents, have sued ED, claiming that some of NCLB's accountability provisions conflict with IDEA. The case centers around individualization vs. standardization.

"There is a different philosophy between the two laws," says Tom Hutton, a staff lawyer with the National School Boards Association. "Whether they (IDEA and NCLB) are legally incompatible is what is being litigated."

The court ruled that the plaintiffs, the Illinois districts and parents, didn't argue sufficiently to have legal standing. The plaintiff's lawyer has said they will try again, according to Hutton.

NCLB Lawsuits and Other Woes... In a unique move, the National Education Association, along with school districts in three states, is suing the federal government for failing to fund NCLB adequately. The school districts are in Vermont, Michigan, and Texas. NEA's suit was filed on April 20.

"Today we're standing up for children, whose parents are saying, 'No more' to costly federal regulations that drain money from classrooms and spend it on paperwork, bureaucracy, and big testing companies," said NEA President Reg Weaver in a statement. "The principle of the law is simple; if you regulate, you have to pay."

On June 29, the federal government moved to dismiss the lawsuit on technical grounds.

ED's legal woes don't stop with NEA. Connecticut is expected to proceed with a lawsuit this fall. Connecticut is also asserting that NCLB is an unfunded mandate and says its assessments provide valid measures of student progress. Another battle is brewing in Utah. In April, Utah lawmakers voted to give the state's education requirements priority over federal law. Furthermore, at least 16 states have introduced bills protesting or waiving some of NCLB's requirements; and some states like New Mexico and Virginia have already passed measures, according to the National Conference of State Legislatures.

CEC and NCLB  CEC has worked diligently with lawmakers to make NCLB a law that would benefit students with exceptionalities. CEC believes it is essential that we continue to hold the highest expectations for students with disabilities. By doing so, and by continuing to raise the bar for our students, they will continue to fulfill their potential educationally.

CEC also believes students with disabilities should be included in state- and district-wide assessments. This is the means by which school systems look at their programs to determine those areas in which they may need to allocate additional resources or teachers to make improvements, as well as to identify those programs that are succeeding.

However, CEC recognizes that some areas of the law need to be reexamined and amended if it is to best help students with exceptionalities. Therefore, CEC has joined other organizations in their efforts to ensure NCLB will be amended in ways to ensure a quality education to all students. The organizations have issued a joint letter, which recommends replacing NCLB's current proficiency targets with achievement goals based on the success rates of the most effective schools. Other recommendations include allowing states to measure progress by using students' growth in "achievement as well as their performance in relation to pre-determined levels of academic proficiency," using multiple indicators to determine a students' and schools' performance, and raising NCLB funding to cover a majority of the costs states and districts will incur to carry out the recommendations.

NCLB has much to commend it. Improved academic achievement for all children, doing all we can to help students with disabilities meet the same standards as non-disabled students, and ensuring accountability in our schools are all worthy and commendable goals. As we refine the law, it will better meet the needs of children with exceptionalities and all children.

Resources

CEC's Complete Statement on 2 Percent Flexibility: http://www.cec.sped.org/pp/legislative_update/modules/news/article.php?storyid=106

CEC's Statement on Accountability and Assessment: http://www.cec.sped.org/pp/Assessment-Accountability_Policy.pdf

The Joint Statement: http://www.fairtest.org/nattest/NAEP_PR_05.html

Quick Facts of NCLB Legislative Activity in 2004-2005: http://www.ncsl.org/programs/educ/NCLB2005LegActivity.htm#miscactivity

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