States Cry Foul Over Bush Education Policy

[Harold F. Schiffman]

From: The New Standard

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. Apr 22, 2005 - 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 2.7
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. In
Utah, for instance, an NCLB-related bill passed both the state's House of
Representatives and Senate in special sessions Tuesday and Wednesday. The
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. "The
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.

http://newstandardnews.net/content/index.cfm/items/1725