Band-Aids or Bulldozers

What’s next for NCLB?

By Stan Karp

We are now in year five of No Child Left Behind (NCLB). Once hailed as a historic new federal commitment to leave no child behind, today NCLB inspires fear and loathing from coast to coast — and beyond. Puerto Rico and Hawaii hate it too.

Every one of the 50 states has introduced legislation rejecting all or part of NCLB. Several have filed lawsuits against it. More than 10,000 schools have been put on NCLB’s infamous list of “schools in need of improvement” and face an escalating series of sanctions that address neither their needs nor their challenges. Thousands more will be added to the list in the next few years as increasing numbers of schools are squeezed in the tightening vise of unreachable “adequate yearly progress” (AYP) test targets and inadequate resources. This year more than a quarter of all public schools (nearly 23,000) failed to reach AYP. Missing AYP two years in a row earns a spot on the list.

Today, NCLB is almost as unpopular as the administration and Congress that created it. With the law coming up for reauthorization in 2007, debate is heating up about whether we need Band-Aids to “fix” NLCB or a bulldozer to bury it.

So far, efforts to make NCLB more reasonable have been largely futile. Margaret Spellings, the new secretary of education, has used less inflammatory rhetoric than her predecessor (Rod “the NEA is a terrorist organization” Paige). But her department’s much-lauded “flexibility” about NCLB regulations has been marginal. New guidelines allow schools to exempt more of their most severely disabled special education students from NCLB tests. Rules that require schools to give tests to limited English proficient (LEP) students in languages they don’t know and then remove them from that category as soon as they know enough English to improve their scores have been modified slightly. States have been allowed to manipulate thresholds for “proficiency” and vary the number of students required before a subgroup’s scores count. These changes have helped limit, temporarily, the number of “failing” schools, though a new study from the Harvard Civil Rights Project indicates that many of the changes have allowed more wealthy and white districts to avoid penalties imposed on poorer districts with more students of color.

But none of this tinkering has altered the fundamental problems with the law. Districts remain under mandate to reach 100 percent passing rates on state tests for all students by 2014. Next year, all districts are required to give math and language tests in every grade three through eight, and once in high school. Required science tests must be added by 2007–08. The testing plague is spreading so fast even the companies making millions off it are having trouble keeping up. The Education Sector, a Washington, D.C., research group, recently estimated that public schools, which already give more than 33 million tests under NCLB, must add another 11.4 million by the end of the current school year. With states spending only about $20 per student developing these tests, many are poorly made and even more unreliable than existing ones. Thirty-five percent of state testing offices reported a “significant error” by a testing contractor in scoring a state test since 2000. As researcher Walt Haney of Boston College has noted, “There is more public oversight of the pet industry and the food we feed our dogs than there is for the quality of tests we make our kids take.”

But the overuse and misuse of standardized tests is only the start of the problems with NCLB. NCLB uses these test scores to impose sanctions that have no record of success as school improvement strategies, and in fact are not really educational strategies at all. They’re political strategies designed to promote privatization and market reform in public education. The most well known of these sanctions are NCLB’s transfer and supplemental tutorial provisions. Both encourage students (and not necessarily the “failing” students) to transfer to other schools and/or seek tutoring, mostly from private companies. Both channel funds and resources away from struggling schools and leave them further behind. [For more, see “The NCLB Hoax,”]

Less well known, but soon to become much more familiar, are the law’s more drastic measures for schools that miss AYP for four or five years. After four years, schools are required to choose one of the following:

  • Replace school staff relevant to the failure.
  • Put in place a new curriculum.
  • Decrease management authority at the school.
  • Appoint outside experts to advise the school.
  • Extend the school year or the school day.
  • Restructure the internal organization of the school.

After five years, the choices are:

  • Reopen as a charter school.
  • Replace all or most of the staff.
  • Contract with an outside entity to operate the school.
  • Institute other significant governance and staffing changes likely to improve the school.
  • Turn over operation of the school to the state.

Since NCLB sanctions are cumulative, schools also must presumably continue to offer transfer and tutoring while instituting these measures.

These sanctions are a formula for chaos, not school improvement. Some (like extended school years and days) would require large sums of money that NCLB does not provide. Others are hopelessly vague (“a new curriculum,” “other significant” changes) and others are a license to sell off public schools to private management firms (“contract with an outside entity”). But none of these strategies has any record of success when it comes to addressing the problems of educational inequality and academic achievement gaps that trigger their imposition. As researcher Gerald Bracey has pointed out, NCLB uses the phrase “scientifically based research” 111 times, but has “zero” scientific evidence to support the sanctions it imposes on the schools to improve performance.

One of the insidious effects of NCLB has been the way it has rapidly integrated itself into state systems of standards and testing. The mainstream consensus — developed through years of governors’ summits and business roundtables — is that externally imposed standards and tests are the key to school improvement. This has proved to be fertile soil for NCLB at the state level. As the new Harvard Civil Rights study describes, “NCLB as now implemented undermines the development and implementation of states’ own systems designed to reform curriculum and assessment and undermines the implementation of whole school models and long-term basic reform at the school and district levels.”

Despite NCLB’s unprecedented extension of federal influence over school policy, states retain considerable flexibility in defining and implementing NCLB penalties. Promoting the least harmful and most supportive “interventions” for schools on the NCLB sanctions list will be an increasingly important task for education reformers and activists in the next few years.

The Massachusetts Campaign for the Education of the Whole Child is one such promising effort. [See]

But state education agencies are rapidly being overwhelmed by the growing numbers of schools identified for “restructuring,” severely limited capacity to assume responsibility for them, and a patchwork of poorly designed and largely unworkable sanctions to implement.

One obvious problem is money. A lot of attention has been paid to the debate over funding levels for NCLB, and whether NCLB provides enough money to pay for all the tests it requires or lives up to the president’s promises when the law was passed. (It doesn’t, of course. See “Taming the Beast,” Rethinking Schools, Vol. 18, No. 4.) But there’s been less attention paid to the absence of funding to support the new sanctions NCLB imposes. The legislation does have language creating a special school improvement fund. But the president has never requested, and Congress has never authorized, any money for it. Instead, NCLB “school improvement funds” are taken by diverting funds from Title I — the single largest federal education program, originally designed to support schools with high concentrations of poor students — away from local schools and districts to state education departments to develop plans to implement NCLB sanctions. The result is what the Center for Education Policy recently called “a shell game, in which states take funds away from districts with the greatest concentrations of low-income children and give them to other districts” to finance the imposition of NCLB penalties.

Beneath the Rhetoric

Contention over how to respond to growing numbers of schools in the latter stages of NCLB sanctions will only add to resistance against the law. Still, the prospects for correcting such fundamental flaws while reauthorizing NCLB are mixed at best.

Historically, federal education legislation has set broad policy goals and used federal funds to promote them at the state and local levels. Often these goals have reflected equity concerns like ending discrimination or providing services for special needs students. To be sure, NCLB does echo such precedents by explicitly focusing on achievement gaps and demanding that schools address them. In fact, NCLB’s expressed goal of overcoming educational inequality is probably its strongest source of political support.

But beneath the rhetoric, NCLB’s policy framework is toxic, bad for the health of schools and children and driven by ideological political objectives that are arrogantly indifferent to the realities of school life. It makes no commitment to bridging the deep social inequalities reflected in academic achievement gaps, but demands that schools make them disappear (and it demands more of poorer, diverse schools than richer, homogeneous ones). When schools fall short of the impossible, they face punitive sanctions that weaken their ability to serve all students and ultimately increase educational inequality instead of reduce it.

Some advocates for children and schools, desperate for signs of hope amidst the wasteland of social and economic policies emanating from Washington, have struggled mightily to find positives in NCLB. They point to the pressure on schools to account for all students, the promise of better choices for parents in the poorest communities, the emphasis on improving teacher qualifications. But five years of inconsistent and underfinanced implementation has made good on none of these promises. Reasonable people may continue to differ on various aspects of NCLB, but the core of the law has been laid inescapably bare: tests, more tests, and punitive sanctions that create a systematic and misleading impression of failure and that hurt public education far more than they help those who have been poorly served by it.

As NCLB reauthorization nears, a central question will be what can be done to limit the damage, especially since the law’s harmful impact is poised to grow dramatically over the next five years as its more drastic sanctions kick in.

For several years, Democrats in Congress have resisted reopening the provisions of NCLB, warning that the current political climate was likely to encourage the introduction of even more aggressive privatization measures. This will undoubtedly be attempted next year. Renewed evidence that NCLB’s sanctions are a stalking horse for privatization can be found in the President’s 2007-08 budget. While overall education funding is significantly reduced, the administration found $100 million to support another voucher proposal that would make private schools eligible to receive NCLB transfer students. Some members of Congress have been pushing for such vouchers since NCLB was first proposed, and their repeated re-emergence in everything from Katrina relief packages to local Washington, D.C., “pilot programs” to annual presidential budgets heralds their inevitable reappearance in next year’s NCLB reauthorization plans.

Democratic supporters of the law generally have confined themselves to complaints about funding levels, while they continue to endorse NCLB as an essentially positive program for schools. But growing local and state sentiment against NCLB assures that other issues will surface in the reauthorization process. Significant elements of the education and civil rights lobbies are committed to trying to modify NCLB and proposals for reform have already come from the National Association of State Legislators, many professional associations, and the national teachers’ unions. FairTest has also put together a broad coalition of education advocacy and civil rights groups to support replacing NCLB’s most harmful provisions with measures that could support better assessment practices and reform efforts. [See]

Among the proposals likely to be considered by Congress next year are:

  • Efforts to allow states to use “growth models” that give schools and districts credit for relative progress in place of more rigid AYP formulas.
  • Limits on the applicability of sanctions, like transfers and supplemental tutoring, to “failing” subgroups (or even “failing” students within “failing” subgroups). Currently, everyone in a NCLB-sanctioned school becomes eligible once a school is deemed “in need of improvement.” (This is true even if a school is sanctioned for “inadequate performance” in consecutive years by two totally different groups.)
  • Proposals to reverse the order of the transfer and tutorial sanctions, so that the more disruptive, and less available, transfer option would kick in later. This would also give a boost to private tutorial providers, who stand to profit from largely unregulated and unmonitored access to potentially $2 billion in public funds each year.
  • Proposals to raise funding to levels that would support both the law’s testing mandates and some fraction of the estimated costs of actually reaching them (or conversely to suspend sanctions in any year the law was not fully funded.)
  • Proposals to give states more leeway to issue waivers, vary assessment practices and testing schedules, and pursue their own formulas for reform.

The debate over reauthorizing NCLB is likely to show how much the bipartisan coalition that originally passed it has fragmented. Hopefully, it will also provide opportunities to limit the damage. But the Congressional debate, unfortunately, is much less likely to define lasting alternatives to the top-down, test-driven, underfunded policies that are crushing the life and the hope out of too many schools.

For that we’ll need the voices of educators, students, and communities. One place those voices could make a difference will be the 2006 elections when the next Congress will be chosen. Many in the antiwar movement, frustrated by the failure of Congress to reflect the broad popular opposition to the war in Iraq, have pledged not to support any candidates who continue to support current U.S. policy. Similarly, opponents of NCLB might insist, at a minimum, on a pledge to end federally mandated testing, eliminate the direct ties between test scores and sanctions, and replace NCLB’s privatization agenda with more funding and stronger support for improving the public system.

Sending people to Congress who are committed to ending both the war in Iraq and the war on our public schools would be a big step toward making good on the promises — empty so far — of No Child Left Behind.

Stan Karp (, on leave from his teaching position in Paterson, N.J., is an editor of Rethinking Schools.

Spring 2006