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The No Child Left Behind Act: Past, Present, and Future Under Obama Issues +Answers Gulf Coast Public Lecture Series Jointly Sponsored by The Sun Herald and The University of Southern Mississippi, Gulf Coast, College of Education and Psychology Charles J. Russo, J.D., Ed.D. Panzer Chair in Education University of Dayton (937) 229-3722 (ph) [email protected] Outline 1. Introduction 2. Overview of the No Child Left Behind Act (NCLB) 3. Key Elements of NCLB a) Accountability b) Highly Qualified Teachers (HQTs) c) Funding and Support for HQTs 4. Legal Issues and the NCLB a) Student-Programmatic Issues b) School Staff and Systems 5. Evaluation 6. The Future of NCLB: Issues and New Directions 1. Introduction Due to poor student performance, President Bush released his education reform plan 3 days after being inaugurated in January 2001 to make the NCLB the cornerstone of his administration’s educational policy NCLB enacted December 2001 with strong bi-partisan support: 91-8 in Senate and 384-45 in the House NCLB signed into law January 8, 2002 Goal: have all students achieve at grade level by 2014 1. Introduction The NCLB was enacted as part of the reauthorization of the Elementary and Secondary Education Act (ESEA), the most expansive federal education statute in history. Initially enacted in 1965 during the height of the civil rights movement, the original ESEA, and later versions, created a pool of federal funds to be used to provide, or withhold, support for States based on whether they complied with its provisions and those of the Civil Rights Act of 1964. 1. Introduction Before 1965, policy-making for elementary and secondary education was exclusively with State and local governments (except for school desegregation) The Cold War, Sputnik (1957), civil rights movement, and President Johnson’s War on Poverty led to enactment of the ESEA 2. Overview As part of expected full compliance by 2014, NCLB requires States to 1. create challenging academic content standards of proficiency 2. assess student proficiency in grades 3-8 each year in reading and mathematics, and once in those subjects in grades 9-12 3. devise own definitions of proficiency 4. meet Annual Yearly Progress 5. have teachers of core academic subjects be “highly qualified” 2. Overview Despite the Act’s good intentions, the public seems unconvinced that the NCLB is likely to have much of a positive impact on schools. In fact, concerns have emerged over whether the NCLB represents Federal over-reaching through its reliance on the Spending Clause, thereby inserting itself into a realm that is reserved to the States under the Tenth Amendment or is a necessary educational reform. 2. Overview Thus, the remainder of this presentation is divided into 5 parts: 2. Overview of the NCLB 3. Key Elements of NCLB a) Accountability b) HQTs c) Funding and Support for HQTs 4. Legal Issues and the NCLB a) Student-Programmatic Issues b) School Staff and Systems 5. Evaluation 6. The Future of NCLB: Issues and New Directions? 2. Overview Reauthorized in 2002 as the almost 400 page long Strengthening and Improvement of Elementary and Secondary Schools, the ESEA-NCLB is now divided into nine subchapters, down from 14 in its previous version. The NCLB retains many of its original terms. 2. Overview: Subchapter I Title (or Chapter) I, now Subchapter I, Improving the Academic Achievement of the Disadvantaged, perhaps the best known part of the ESEA. Subchapter I requires local boards that receive federal financial assistance to take steps to improve academic achievement among students who are economically disadvantaged. Overview: Subchapter II Subchapter II, Preparing, Training, and Recruiting High Quality Teachers and Principals, sections that go to the heart of the NCLB, contain some of the Act’s most controversial and far-reaching provisions. Major parts of this subchapter address 1) teacher and principal training and recruiting; 2) mathematics and science partnerships; 3) innovations for teacher quality; and 4) programs to enhance education through technology. 2. Overview: Subchapter I Subchapter I is divided into subparts which are designed to provide basic program requirements such as remedial programs for children from poor families. Other key subparts cover 1) grants for reading skills improvements; 2) education for migratory children; 3) prevention and intervention programs for children and youth who are neglected, delinquent, or at-risk; 4) comprehensive school reform; 5) advanced placement programs; and 6) school dropout prevention. Overview: Subchapters III-IV Subchapter III, Language Instruction for Limited English Proficient and Immigrant Students, directs school officials to provide improved language instruction for children in need of such programs. Two key parts of Subchapter IV, 21st Century Schools: 1) safe and drug-free schools and communities 2) Twenty-First Century learning centers. Overview: Subchapter V Subchapter V, Promoting Informed Parental Choice and Innovative Programs, covers 20 programs, charter and magnet schools, and providing funds for improving education such as: 1. partnerships in character education; 2. for students who are gifted and talented; 3. foreign language assistance; physical education; 4. excellence in economic education; and 5. grants to improve the mental health of children; Programs are designed to afford parents better choices while creating innovative programs, especially if local boards are unresponsive to parental and student needs. Overview: Subchapters VI-VII Subchapter VI, Flexibility and Accountability, contains three major sections: improving academic achievement, rural education initiatives, and general provisions. Subchapter VII, Indian, Native Hawaiian, and Alaska Native Education, supports the efforts of States, local boards, and post-secondary educational institutions serving target populations. Overview: Subchapter VIII Subchapter VIII, Impact Aid, offers aid to local boards with substantial and continuing financial burdens due to the acquisition of real property by the federal government. Impact Aid covers children 1) who live, and whose parents work on, federal property; 2) whose parents are in the military and live in low-rent housing; 3) who are part of heavy concentrations of children whose parents are federal employees but do not reside on federal property Impact Aid covers districts 1) experiencing sudden and substantial increases or decreases in enrollments due to military realignments; 2) need special help with capital expenditures for construction projects. Overview: Subchapter IX Subchapter IX, General Provisions, contains boilerplate: 1. reviews definitions; 2. flexibility in the use of administrative and other funds; 3. program coordination; 4. waivers; 5. uniform provisions, including participation by students and teachers in non-public schools; 6. complaint processes for participation of non-public schools; and 7. evaluations. 3. Overview: Key Elements Key elements in the NCLB intend to 1. make boards accountable for student achievement, particularly by imposing standards for annual yearly progress for students and districts; 2. require officials to rely on effective research-based teaching methods; 3. improve academic achievement among students who are economically disadvantaged; 4. assist in preparing and recruiting HQTs; 5. afford parents better choices while creating innovative programs, especially if local boards are unresponsive. 3a. Accountability In making States and boards more accountable for academic growth, the NCLB requires educators to devise challenging academic standards for students. States must create challenging academic content standards in academic subjects that “(I) specify what children are expected to know and be able to do; (II) contain coherent and rigorous content; and (III) encourage the teaching of advanced skills.” 3a. Accountability Challenging student achievement standards “(I) are aligned with the State's academic content standards; (II) describe two levels of high achievement (proficient and advanced) that determine how well children master the material in the State academic content standards; and (III) describe a third level of achievement (basic) to provide complete information about the progress of the lower achieving children toward mastering the proficient and advanced levels of achievement.” 3a. Accountability Accountability systems for regular education must be based on challenging State standards in reading and mathematics. This requires annual testing of all students in grades 3-8 and once in 9-12 beginning in the 2005-2006 academic year along with annual Statewide progress objectives. 3a. Accountability Testing must “be designed to ensure that all groups of students meet or exceed their States’ levels of academic achievement.” Even though 95% of students with disabilities must take part in annual assessments based on State standards, the NCLB permits alternative assessments for such measures. 3a. Accountability Accountability deals with whether districts achieve annual yearly progress (AYP) “in a manner that (i) applies the same high standards of academic achievement to all public elementary school and secondary school students in the State; (ii) is statistically valid and reliable; (iii) results in continuous and substantial academic improvement for all students; (iv) measures the progress of public elementary schools, secondary schools and local educational agencies and the State based primarily on the academic assessments described in paragraph (3); [and] (v) includes separate measurable annual objectives for continuous and substantial improvement for students who attend public elementary and secondary school, specifically those who are economically disadvantaged, from major racial and ethnic groups, with disabilities, and have limited English proficiency.” 3a. Accountability As to student outcomes, the NCLB makes an exception to the extent that States are not required to disaggregate data on students who were recently identified if the number of children in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about individual students. 3a. Accountability Finally, the NCLB permits States, at their option, to include other academic indicators for students, measured separately for each group, such as achievement on additional State or locally administered assessments, decreases in grade-tograde retention rates, attendance rates, and changes in the percentages of students completing gifted and talented, advanced placement, and college preparatory courses. 3a. Accountability If local boards or schools fail to meet their AYP goals, then significant accountability measures come into play. In schools failing to meet their goals for two consecutive years, officials must develop comprehensive plans with support from the State and/or local boards. Title I schools that serve children who are most at-risk and that fail to reach AYP for two consecutive years are faced with three options. 3a. Accountability First, and most draconian, parents must be offered the option of transferring their children to other schools within the system. While this option has yet to be applied, it all but guarantees considerable legal challenges. 3a. Accountability Second, parents must be notified that their children are entitled to State-approved supplemental educational services such as after school/weekend tutoring from private sources. Notice must 1) explain the effect of and reasons why schools were identified as failing and must be in a language that, to the extent practicable, they can readily understand. 2) offer parents the chance to become involved in addressing the academic issues that caused the schools that their children attend to be identified as failing or in need of improvement. 3a. Accountability Third, educators must continue to provide schools in need of improvement with technical assistance while taking appropriate corrective action such as school restructuring. In other words, if a school fails to improve after a full year of corrective action, then local officials must 1) inform parents of their right to transfer their children to other schools, 2) continue to provide supplemental services, and 3) prepare to make arrangements for alternative governance. 3a. Accountability Under the alternative governance provisions, schools can 1) 2) 3) 4) 5) reopen as public charter schools, replace all or most of their staff (including the principal), permit a private management company to take over schools, permit the State Education Agency to operate schools, or allow some other form of major restructuring. 3b. Highly Qualified Teachers (HQTs) Central to the NCLB’s mandate is that all students should be taught by HQTs in core academic subjects. According to the NCLB’s regulations, “[t]he term ‘core academic subjects’ means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.” 3b. HQTs The NCLB divides teachers who must become “highly qualified” into two groups: new and experienced. 1. New HQTs in elementary schools must: a) possess at least bachelors’ degrees and b) demonstrate, by passing rigorous State, rather than federal, tests, that they have subject knowledge and teaching skills in reading, writing, mathematics, and other areas of basic elementary school curriculum. 3b. HQTs 2. New HQTs in middle and secondary schools must a) possess at least bachelors’ degrees b) demonstrate high levels of competency in each of the subjects they teach either by passing rigorous State academic subject tests in each of these areas or successfully complete academic majors, graduate degrees, course work equivalent to undergraduate academic majors, or advanced certification in credentialing in these areas. 3b. HQTs Under the NCLB, teachers in elementary, middle, or secondary schools who are not new, must 1. possess at least bachelors’ degrees, 2. meet the requirements for teachers who are new to the profession, and 3. pass rigorous State tests or demonstrate competence in all academic subjects in which they teach. 3b. HQTs Since the HQT provisions apply to special education, officials must “take measurable steps to recruit, hire, train, and retain highly qualified school personnel to provide special education and related services” for students with disabilities. In order to be classified as HQT, subject area teachers in special education must 1. a) be certified fully in special education b) or pass State-designed special education licensure examinations and 2. possess bachelors’ degrees while demonstrating knowledge of each subject for which they are the primary instructors. 3b. HQTs New special education teachers have until up to two years after they are hired to become “highly qualified” in different subjects as long as they are fully certificated in at least one academic area. The Individuals with Disabilities Education Act adds that while teachers who satisfy its HQT requirements also qualify for this title under the NCLB, the law does not create a private right of action that can be judicially enforced to ensure that children are taught by such teachers. 3c. Funding and Support for HQTs NCLB provides funds to States and local boards to offer activities to support HQTs. Pursuant to the NCLB, local school officials can transfer up to 50% of their federal NCLB grant to Title I funds in order to target resources as they deem appropriate. The Federal government also supports the development of teachers in the needed subject areas of mathematics, sciences, special education, and languages through such innovative programs as Troops for Teachers and Transition to Teaching. 3c. Funding and Support for HQTs Along with NCLB based assistance to States and local boards, Federal law offers student loan forgiveness of up to $5,000 for HQTs who serve for five consecutive complete school years in low-income schools. Full-time secondary school HQTs in mathematics or science or elementary, or secondary school teachers whose primary responsibility is to provide special education to children with disabilities, may receive up to $17,500 in student loan forgiveness. 4. Legal Issues and the NCLB Courts have essentially agreed that when Congress enacts legislation under its Article I, Section 8, Clause 1, spending power, the typical remedy for noncompliance by States or other school officials with federally imposed conditions is the threat of the termination of federal funds rather than permitting individuals to file suit in their own names. Thus, courts have been unreceptive to challenges. 4. Legal Issues As educational leaders in the United States strive to implement the NCLB, five inter-related concerns emerged with regard to students and programmatic issues that may open the doors to controversy, if not litigation. 4a. Student-Programmatic Issues First, an argument can be made that the NCLB’s accountability provisions, which rely on high-stakes testing, are problematic since they place greater emphasis on systemic results rather than the progress of individual children. As such, the NCLB should pay more attention to formative rather than summative evaluations meaning that educators should work to identify areas where children are in need and work to strengthen their weakness rather than rely on high stakes tests. 4a. Student-Programmatic Issues High stakes tests. These tests can be counter productive not only because children run the risk of simply studying for tests rather than for broader understandings of material, but also since placing too much emphasis on a single examination imposes enormous pressure on teaches and principals that is passed on to the students in a way that is antithetical to the process of education. 4a. Student-Programmatic Issues Second, given the impact that high stakes testing can have on students, staff, and schools systems, NCLB requires assessments to ensure that tests fairly measure student learning while being free from racial-cultural bias. Boards must administer tests that 1. are valid, reliable measures of what students have been taught; and, 2. afford students sufficient notice that they must pass them in order to earn diplomas and/or specify areas in need of additional instruction. 4a. Student-Programmatic Issues Third, in placing great emphasis on the results of high stakes testing, the NCLB fails to consider where children started or to treat them as individuals in measuring their progress. NCLB assessments measure primarily basic skills, as crucial as they are, while largely disregarding the arts and humanities. Yet, tests must do more to ensure that students are exposed to an array of topics, especially children from families of low socio-economic status since they are unlikely to have the broadening enrichment opportunities that their peers from families that are more financially well-off can enjoy. 4a. Student-Programmatic Issues Fourth, since the NCLB permits parents to remove their children from failing schools, it may create the perception that it is spawning conditions whereby urban, and other, schools are being abandoned. Insofar as such a situation runs the risk of exacerbating racial and economic segregation in metropolitan areas by creating what is essentially de facto racial segregation, educators must work to eliminate such inequities or face legal challenges. 4a. Student-Programmatic Issues Fifth, the NCLB may erode support for programming such as gifted education. In fact, parents of children who are gifted have voiced concerns that the NCLB pressures educators to provide resources for poor performing students at the expense of their children. While the courts disagree on the rights of gifted children, if educators ignore their needs, controversy is likely to ensue as parents seek equitable educational opportunities for their children. 4b. School Staff and Systems Three inter-related issues that are all but certain to generate litigation involve the employment status of faculty and staff. These concerns emerge in light of the Contracts Clause of the Constitution, Article I, Section 10, that provides, in part, that “no State shall ... pass any ... law impairing the obligation of contracts.” The Framers realized that unless contracts could be relied on without possible later changes or abrogation by States, a democratic society could neither progress nor develop. Teachers and their unions will undoubtedly rely on this provision since tenure and job security are contractual relationships that can only be changed prospectively. 4b. School Staff and Systems First, it is unclear what will happen to tenured teachers who fail to achieve HQT status. Since the NCLB was implemented after these teachers were hired and received permanent contracts, it is unlikely that their contracts can be terminated for failing to meet these goals, especially if they have taught successfully. While courts consistently uphold State certification standards for teachers, unless or until they replace statutes which permit teachers to receive permanent certification, with other plans that statutorily eliminate tenure, this remains an open question subject to judicial interpretation. 4b. School Staff and Systems Second, insofar as the NCLB permits parents to transfer their children out of schools that are identified as failing, resulting cut backs in staff may make it necessary for teachers and other staff to accept involuntary transfers. However, in school systems with collective bargaining contracts addressing teacher assignments, this is certainly a topic that will generate controversy and litigation. 4b. School Staff and Systems Third, the NCLB permits boards to replace all or most of the staff, including principals, in schools that failed to achieve their AYP goals. If boards must impose do so, then teachers and their unions will pursue administrative and judicial avenues possible to retain their jobs. 4b. School Staff and Systems In other words, although NCLB authorizes boards to dismiss educators in failing schools, to the extent that teachers have acquired permanent status through tenure, they have protectable substantive due process rights entitling them to procedural due process before they can be dismissed. Thus, while NCLB permits such a dramatic step, States will have to act to change their statutes on the rights of educators in public schools or face an onslaught of litigation. 5. Evaluation 1. 100% proficiency by 2014 is unattainable and unrealistic; no country has done it, even under better economic conditions than the present. 2014 is an arbitrary date set by Congress – it assumes that most States would have to improve student proficiency at a rate far greater than ever achieved anywhere . . . has led to attempts by State officials and educators to play games. Weaknesses 2. States’ freedom to define “proficiency,” create the tests to measure it, and set AYP benchmarks: Thus, there can be 50 different definitions of proficiency as some States have lowered their standards and cut scores to make AYP. 3. Impact of failure to comply not meaningful: so far no consequences for entire States . . . and corrective action or restructuring does not guarantee improvement. May need to include vouchers and more charter schools. 4. Funding: in spite of increased spending, the federal government lacks the control over schools and districts to enforce the NCLB’s mandates. This is especially true in Mississippi where Gov. Haley Barbour’s December proposal was to cut 68% in aid to special education, gifted, and vocational education programs, a move that will impact the State’s ability to meet its NCLB goals. 6. The Future of NCLB Issues in Need of Resolution NOTE: Reauthorization is overdue: later this year? 1. Drop the unrealistic goal of 100% proficiency by 2014 2. How to regulate increased Federal (from 17.4 billion in FY 2001 to 24.9 billion in FY 2009) and State spending on education . . . especially for testing 3. Address limited flexibility and bureaucracy that NCLB created 6. The Future of NCLB 4. Reconsider the over-emphasis on accountability in reading and mathematics that distorts the larger picture of student achievement . . . perhaps add science and foreign languages 5. Examine NCLB’s impact on federalism and the need to restore State and local control of Education 6. The Future of NCLB 6. HQTs should be determined by a combination of classroom effectiveness based on student achievement data and not just teacher examinations 7. Additional resources should be devoted to help States upgrade their student and teacher data systems 6. The Future of NCLB Republicans In 2007 introduced the A-Plus Act (Academic Partnerships Lead Us to Success) to replace NCLB to allow States to opt out of federal requirements and enter into individual performance contracts with U.S. DOE to obtain federal education funds Teacher unions - seek no additional accountability for schools or teachers; - would be happy to repeal NCLB; - would like more funds if reauthorized 6. The Future of NCLB Congressman George Miller – Democrat, Chair, House Education and Labor Committee, original sponsor of NCLB seeks to: 1. 2. 3. 4. Use a growth model to assess student progress Employ various data in addition to standardized tests to determine AYP, boards could devise their own tests Develop different consequences for schools failing AYP Create stronger incentives to attract teachers to high need schools and specialty areas like mathematics, science, special education, and English language learners 6. Future of NCLB Obama Administration: 1. Seeks to improve the quality of standardized tests and raise standards so graduates are college and work ready 2 Wants HQTs assigned equitably to all districts, rich and poor 3. Education Secretary Arne Duncan supports national academic standards and assessments 4. Obama and Duncan support ‘performance pay’ for teachers 6. Future of NCLB 5. Duncan has set aside $250 million to help States upgrade their data systems 6. Obama and Duncan want to spend at least $3.5 billion to push local education officials to close failing schools and reopen them with new staff. Duncan wants the 5,000 worst-performing schools, approximately one percent of all U.S. schools, turned around in five years. 7. Duncan wants States to report whether they use student achievement data in their local teacher and principal evaluation systems