States Cry Foul Over Bush Education Policy
The New Standard
Apr 22, 2005

States Cry Foul Over Bush Education Policy

Connecticut Cites Unfair Testing Barriers; Others Say Feds Shortchange States by Erin Cassin

Years of disappointing experience behind them, a number of states have raised the stakes in the fight over the No Child Left Behind Act, arguing with lawsuits that the laws requirements are severe and provisions inadequate.

As opposition to the Bush administration's controversial education policy grows, state and local governments are confronting the federal government over a lack of funding and flexibility written into the law. A multistate lawsuit filed this week accuses the federal government of requiring costly testing while shortchanging school districts.

Meanwhile, Connecticut is preparing to file a separate lawsuit, lambasting the government for pursuing a costly "one size fits all approach" to the detriment of diverse student populations. In bringing its suit, Connecticut is drawing attention to the possible negative effects of standardized testing on children who do not yet read and write English at their grade level. This week, the National Education Association, all
million members of which are professional educators, teamed up with various school districts and education advocates to take legal action against the president's No Child Left Behind (NCLB) regulations, filing a lawsuit Wednesday against US Secretary of Education Margaret Spellings.
The plaintiffs include school districts in Michigan, Texas and Vermont, plus educational advocacy groups from those states as well as Connecticut, Illinois, Indiana, New Hampshire, Ohio, Pennsylvania and Utah.

The NEA lawsuit charges that the federal government is illegally requiring states to carry out the No Child Left Behind mandates without providing the promised funding. As a result, the plaintiffs charge, the federal government has violated its own law, which plainly states: "Nothing in this Act shall mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act." In a press statement about the lawsuit, NEA President Reg Weaver said: "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. The principle of the law is simple: if you regulate, you have to pay."

Already, some lawmakers have defied the federal government and drafted measures that will modify the implementation of NCLB in their states.
Utah, for instance, an NCLB-related bill passed both the state's House of Representatives and Senate in special sessions Tuesday and Wednesday.
bill, sponsored by Representative Margaret Dayton, a Republican, stipulates that state education regulations supersede all federal mandates. In total, lawmakers in at least 21 states have introduced legislation, resolutions and other actions regarding NCLB, according to an April 2005 update on the National Education Association's website.

Singed into law by President Bush in January 2002, the No Child Left Behind Act is a major education initiative intended to raise scholastic standards by regulating schools nationwide, requiring they meet federal benchmarks or face penalties. The program uses controversial standardized testing to evaluate the progress schools are making in compliance with the regulations. In addition to the substantial costs to states, No Child Left Behind has angered educators and advocates because of its emphasis on test scores over other assessments. Opponents of the policy say that it unfairly penalizes schools with high populations of pupils who traditionally score lower on standardized tests, such as students who have a first language other than English, are part of a minority group, are learning disabled or are poor.

Connecticut authorities have drawn attention to these criticisms of NCLB in preparing a lawsuit against the US Department of Education that, in addition to addressing funding shortages faced by the state, will challenge what Connecticut officials see as an inflexibility in the controversial standardized testing mandate itself. "We did a study of the cost of NCLB to the state and to our local districts," said Connecticut Commissioner of Education Betty Sternberg in an interview with The NewStandard, "and given the costs and taking into account all the federal money that we have received and will receive up through 2008, we will have a shortfall of $41.6 million."

Commissioner Sternberg said the US Department of Education has denied all her appeals for flexibility in the NCLB testing regulations, among them a waiver request pertaining to students with limited English language skills. She said she filed written requests seeking waivers from some of the NCLB assessment requirements in April 2004 and again in January 2005.
Both times, the requests were rejected. In explaining why the state is looking to the courts for relief, Commissioner Sternberg said, "We've exhausted administrative remedies."

Though the issue of gauging diverse students' achievement through standardized tests is coming to a head in Connecticut, Bush's NCLB policy has garnered nationwide criticism from a wide range of groups, such as religious organizations, political advocacy groups, educators, social workers, psychologists, and advocates for children, minorities, and the disabled. "Standardized tests may be reasonably accurate measures of a limited range of things that students ought to know, but they are insufficient measures of real achievement in any subject," said Monty Neill, co-executive director of National Center for Fair & Open Testing, a Massachusetts-based organization working to end the misuses and flaws of standardized testing. Neill's organization believes that standardized exams offer too few opportunities for students to display their abilities in areas such as analysis, synthesis, evaluation and creativity.

Critics say the uneven assessment abilities of standardized testing are exacerbated when the students being tested have limited English reading and writing abilities, also known as LEP, for limited English proficiency.
"The assessments are less valid and reliable in measuring what LEP students know and can do because it very well may be the language barrier that's causing the problem," explained Jill Morningstar, the former co-director of education and youth development at Children's Defense Fund, a Washington, DC-based organization that works on behalf of poor, minority and disabled children.

As Neil pointed out, "It's very common that LEP students are being tested with an instrument that they basically can't read or understand." The Department of Education currently allows schools to exempt LEP students in their first year of enrollment from the reading/language arts and science tests, but not from the mathematics exam. In her request to the US Department of Education, Commissioner Sternberg asked that LEP students in Connecticut schools be allowed to wait three years before they are given any of the assessments. She explained that even the relatively flexible rule of only giving LEP students the math assessment in their first year "doesn't work in [Connecticut's] case because the math exam is heavy on reading and on writing."

When it comes to the annual assessments, the NCLB regulations do allow schools to change testing materials or procedures to ensure "that an assessment measures the student's knowledge and skills rather than the student's disabilities or English proficiency." For instance, states can provide limited English proficient students with exams written in their native languages. However, as Commissioner Sternberg pointed out, the Connecticut school system's current LEP students speak a total of 159 languages combined.

Once students have attended schools in the US for three consecutive years, they are no longer permitted to take the reading/language arts assessment in their native language. On a case-by-case basis, a school may continue to administer non-English reading/language arts assessments to LEP students who have not reached a sufficient level of English language proficiency, but this may continue for no more than two additional consecutive years. "It sort of goes against all the research to think that it is going to be an isolated few that need the exception," said Daniel Losen, legal and policy research associate with The Civil Rights Project at Harvard University, a Massachusetts-based research organization. "We know that in many states, students who are English language learners take more than two or three years to become proficient enough to accurately measure their achievement in English."

However, an official at the US Department of Education has contended that this research is outdated. "That is a philosophy that has been around for a long period of time without looking at these integrated systems of standards and assessments," said Kathleen Leos, associate assistant deputy secretary of the Department's Office of English Language Acquisition.

Leos explained that under the old system of teaching, English language learners were first taught social and communicative skills and then, after a period of two years or so, were introduced to the "academic language."
Under those circumstances, LEP students did struggle because after years of solely being taught communicative phrases like "where's my lunch card,"
they were suddenly put in front of exams where academic language was needed, Leos said. "So [they] would get to the fifth grade and have to take an assessment that says 'let's read JD Salinger's The Catcher in the Rye and reflect back to me what this essay says' and the student couldn't do that because they had never been taught academic language." In the new system outlined under NCLB, English language learners are taught academic language right from the start, along with social and communicative skills.
Schools are therefore responsible for testing the English language skills of LEP pupils annually, as well as giving them the math, reading/language arts and science assessments that all students are required to take.

While Leos maintained that "in this new system, the concept of time is not relevant," Losen held firm that testing LEP students in English too soon doesn't produce valid results. "If they are in an English language support program, requiring this test in English is not going to accurately show what the student has learned, so it is going to have a negative impact on bilingual programs," Losen said. Schools also have the option of allowing LEP students extra time on the test, providing simplified instructions, and permitting the use of dictionaries. However, according to Raul Gonzales, legislative director of the Washington, DC-based National Council of La Raza, there has been little research into the effectiveness of such accommodations.

"The [No Child Left Behind] legislation says that you can use the accommodations," said Gonzales, whose organization advocates on behalf of Hispanic Americans, "but then the US Department of Education didn't help anyone develop accommodations and hasn't really done anything to support research into accommodations." Gonzalez added that his organization does support NCLB as a whole, but is concerned with how the testing mandates are being implemented. Given the issues surrounding the assessment of pupils with limited English proficiency, it comes as no surprise to many of their advocates that these students tend to score low on standardized tests, in spite of how well they do in the classroom. Since the NCLB legislation is heavily focused on test scores, many advocates of LEP students fear that they are being unfairly judged under the federal education regulations.

And with so much emphasis placed on how students score on the standardized tests, LEP pupils may fall victim to some insidious school policies.
whole [NCLB] Act, to some extent, creates a disincentive for school districts or states to [accept] certain types of students because certain groups typically score lower [on the standardized tests]," said Al Kauffman, senior legal and policy advocate associate with the Civil Rights Project at Harvard University. If not enough students pass the assessments, the government may declare that the school is failing to make adequate yearly progress and take corrective action. And if a school fails to make adequate yearly progress for five years in a row, it "runs the risk of reconstitution under a restructuring plan," according to an NCLB executive summary published in January 2001.

With schools under such tremendous pressure to procure high test scores from their students, some unscrupulous practices have begun to occur at various schools around the nation. "The concern is that kids who are struggling academically based on a test score are going to be asked not to come back to high school because it boosts the high school's test score profile if all the kids who are struggling either get retained so they don't take the test or, if they do poorly, they leave and never show up again," Losen said.

Gonzalez echoed this sentiment, noting: "This push-out phenomenon has been reported to us by groups in New York, Chicago, California and Texas. If kids in high school are not going to do well on tests, then they get counseled into going to a GED program." "From a personal perspective, that's immoral," Leos commented. "From an academic perspective, the question is 'why?' because there is plenty of flexibility in the law itself, especially with the new flexibilities that the Secretary has given over the past two years."

Some of the newest modifications to the NCLB Act were just announced this month when Secretary Spellings informed the nation's state education chiefs on April 7 that the US Department of Education had decided to expand upon NCLB's policy regarding learning disabled pupils, which currently allows for one percent of a school's entire student population to take modified assessments if they have severe cognitive disabilities.

NCLB will soon allow for the use of alternate standardized tests for pupils with less severe yet persistent learning disabilities, though no more than two percent of a school's total student population may be classified in this category. In order to facilitate the implementation of these new regulations, the US Department of Education has earmarked $14 million in immediate support for those students with persistent learning disabilities, Secretary Spellings said.

In her speech, Spellings also remarked that "states seeking flexibility will get credit for the work they have done to reform their education system as a whole," explaining that the US Department of Education is "willing to consider requests, as long as the results for students are there and the principles of the [NCLB] law are followed."

However, the Department has also made it clear that it will not waiver on certain aspects of the NCLB. "The bright lines of the statute -- such as annual testing to determine student achievement, reporting results by student subgroups, and highly qualified teachers -- are not up for negotiation," according to a statement released by Spellings' office.

When asked to comment on the pending Connecticut lawsuit, Spellings'
spokesperson Susan Aspey referred The NewStandard to a reaction issued by the US Department of Education on April 5, which states that "Connecticut has received over $750 million in No Child Left Behind federal funds since the law was signed. Instead of addressing the issue at hand, the state has chosen to attack a law that is designed to assist the students most in need -- and those whom these funds directly help."

Secretary Spellings and her staff did meet with Commissioner Sternberg and other Connecticut state officials this past Monday to discuss Connecticut's issues with the NCLB Act. After the meeting, Commissioner Sternberg and Connecticut Governor M. Jodi Rell released a joint statement in which they remarked that while "we were not able to resolve our differences at this one meeting, we are hopeful that we will be able to continue this type of conversation with decision makers at the US Department of Education." There was no mention of a cancellation of the lawsuit in their statement.

"Everyone in the community and everyone in the school system has to take ownership of English language learners," Leos said. "They must be responsible for the academic success and the language acquisition of our non-English speaking students."

"I think there is plenty of blame to go around," commented Gonzalez of the National Council of La Raza. "To some degree, [the states] have neglected these kids for decades," he remarked, adding that "on the other hand, [the states] are asking for help and they are getting none from the US Department of Education."

"I hope we end up somewhere in the middle, where Connecticut has this commitment to help close the gap between LEP kids and English-speaking kids, and that the Department of Education provides them with whatever help they need to do that," Gonzalez concluded.

2005 The NewStandard.