Fixing "No Child Left Behind"

What exactly is the Center for Law and Education?

The Center works on making the right to high-quality education a reality for all children, especially in low-income areas. It was originally funded by the government to help poverty lawyers representing students and parents. As with the other national poverty law support centers in areas such as health and housing, Congress eventually cut off federal funding because of conservative opposition to representing poor people in cases having far-reaching effects.

I know that NCLB essentially grew out of Title I of the Elementary and Secondary Education Act of 1965. What was the Center's role in that evolution?

Title I was always targeted to assist low-income students, and our mission was to assist low-income families on education issues. We began to push, starting in the 1980s, for attention to program quality, because the studies showed that Title I kids in reading were taught to read words and sentences, but not even whole paragraphs. In math they were taught arithmetic, but not how to problem-solve or apply knowledge. So in 1988 we got into the law provisions to focus on basic and higher-order skills that all students were expected to master. Then in 1994 we were part of this private commission that got massive changes along those lines. For the first time, the states had to develop standards for all students. And they had to ensure adequate progress, but it didn't spell out what adequate progress was. It was up to the States to define the standards and the consequences.

Title I is over 13 billion dollars worth of funds (and now about to nearly double with the stimulus money) going out to improve education, not just to test and intervene. So the 1994 law spelled out that every Title I school is supposed to provide students with core quality elements: accelerated and enriched curriculum, effective instructional methods, qualified teachers, ongoing professional development, individual attention for students having difficulty, and a plan for how it will provide each of those elements based on a program assessment, jointly developed with parents. There's supposed to be a parent involvement policy approved by the parents of the school that spells out how they will be involved.

And yet, parents don't see all of that happening in a lot of schools.

Congress doesn't do meaningful oversight of the program in those terms. The Department of Education doesn't focus on those things. You can go to a conference on Title I or NCLB and it might be a two day conference, but chances are you never even hear about any of those things mentioned. I go into schools and ask about these required elements and they don't even know what I'm talking about.

So how does NCLB actually differ from the 1994 version of Title I?

NCLB was not as new and different as people made it seem. Title I is supposed to get reauthorized every five years, although usually it takes longer. So NCLB was the next reauthorization after 1994, which ended up being in 2001. What was new, first of all, was the standard measure of what AYP (Adequate Yearly Progress) was, although it's still in the States' hands to define what they consider proficient. Another important difference was that it became explicit about the need to disaggregate the data into standardized subgroups including race subgroups, low-income, learning disabled, English language learners, and it specified the need to seek AYP for each subgroup. The other big new thing was requiring districts and states to stop hiring any teachers who were not "highly qualified," and to get all teachers highly qualified by a certain date.

How much input did parents have in the evolution and interpretation of NCLB?

Regulations were required to be negotiated in 1994, but there wasn't a balance between the beneficiaries - parents and students -- and those being regulated during that negotiation. In reality, the room was filled with many layers of administrators, from principals to state superintendents. Then they had two parents.

In contrast, in negotiated rulemaking at the EPA there's a rough balance between expert consumer representatives and industry. So we had two lay parents who were up against a room full of administrators who mostly didn't want to be regulated. And the educators made them feel like they didn't know what they were talking about. After that, we got into NCLB a requirement that they had to appoint the negotiators in such a way that there would be balance between student and parent representatives and educators.

And they did the same thing again--they took five education officials and said they were there representing students, and they said others are themselves parents. We actually sued the Department of Education in 2002 over this. But the case, assigned to a Bush appointee, was tossed out on procedural grounds.

What has been the biggest success of NCLB?

The disaggregation of the data into subgroups and the expectation that all kids should be proficient has generated a lot more attention and more appropriate expectations for low income kids, kids with disabilities, kids of color.

So what needs to be fixed in the next version of this law?

The law as implemented needs to be more constructive, less punitive. We have submitted elaborate proposals on how to do this. We need to eliminate the binary "you're in improvement, you're not" model. All schools need improvement. You're not required to make AYP, you're required to understand when kids aren't meeting standards and to figure out what you're going to change. Things can be done now to make it more of a continuous improvement model, more nuanced.

One of the biggest parent complaints is obsessive focus on the high-stakes test, which in our case is the MSA (Maryland School Assessment), in order to help the school make AYP.

People are under the impression that NCLB requires a single test, and nothing could be further from the truth. The law requires the use of multiple measures, using different ways of assessing for a particular skill. But the Department of Education has made this meaningless. We're hoping the new Department will now do something to address those provisions. You can have different kinds of tests, portfolios of student work and criteria for judging them, assessments through the year of actual classwork.

Is "teaching to the test" a problem if the test is a good one?

There is a lot of teaching to the test and that is a problem. To the extent that the assessments are valid in the first place, they're no longer valid when you teach to the test. If you're teaching to the test, we no longer can assume that doing well on the test items is really an indication of learning or teaching the underlying skills and knowledge well. That needs to be addressed.

What about the pressure under NCLB that all students should be proficient in their reading and math skills by 2014? Is that reasonable?

There's this notion that 2014 is a ridiculous and unrealistic goal for getting all students to proficiency. But it's a target, not a requirement. I don't think there's anything wrong with the 2014 goal as a way to make sure that when some kids aren't on a real path to proficiency, attention is paid. If the target were 2024, then lots of kids wouldn't be on a path to proficiency within their school careers.

Many parents feel that NCLB focuses all the attention on struggling kids.

We need to make something of the advanced level. The act refers to all students reaching proficient and advanced levels. But there's nothing in it tied to advanced levels, to focus schools on getting students to advanced levels.

What about parent concern that subjects other than math and reading--such as social studies, writing, art, physical education--are getting sidelined under the pressure from NCLB? And that proficiency standards get lowered to look good?

There is language in the law requiring schools to ensure teaching and learning in these other subjects, but those provisions are being ignored. And standards for proficiency are much weaker in some states in order to increase proficiency rates, One way to change that is to make sure that the state processes for developing standards, etc. are more deliberative and more democratic. The folks who have an interest in making sure that the standards are very good, not merely making the schools look good, haven't been fully at the table. Those are the parents, but also teachers representing different content areas.

So are you optimistic that we will see some improvements to NCLB under Obama?

I am guardedly hopeful. One potential problematic direction would be to take the pressure that has built up, and release it by further weakening the criteria for what is AYP. Right now, not making AYP is seen as a badge of dishonor, unfair for schools that face bigger challenges. So the temptation is to weaken the trigger, but that would undermine the whole premise of leaving no child behind. The target should underscore that more resources, attention, help are needed in this school. It's not like, 'Gee we're doing all that and we're not making progress.' Students are not getting the enrichment and the individual attention they need.

But can we afford more enrichment and attention in this economy?

Resources matter, but not all elements of teaching well are more costly than teaching poorly. What's the quality of the training that teachers are already getting? Teachers will say 'We can't do authentic teaching anymore.' It's not hard to understand why they feel that way. It's true that NCLB is not presently inspiring authentic teaching. But it could. The first school in Maryland where all kids are proficient is in Ocean City. It's not the poorest elementary school, but it's quite mixed. And when you ask them what their key to success is, the principal summed it up as "we got students talking." That makes sense, because research on authentic achievement shows that the most dramatic test gains come from constantly engaging students in creating new knowledge through disciplined inquiry into real-world matters. If good teaching becomes the focus, if that's the constant conversation, we don't know what that would look like.

There's some movement towards monitoring how each child improves over the years, the so-called growth model, rather than simply comparing this year's third graders to last year's third graders.

The growth model is in principle a good idea. But there are significant challenges in doing it well. Keeping track of the kids is hard in a big data system. And showing some growth is not sufficient. It still has to be based on a target of all kids becoming proficient, or else we're back to having different expectations for different kids.

So can you sum up where we need to take NCLB?

Everybody's got an interest in the accurate assessment of where our kids actually are. We need to work on maximizing the incentives for knowing it, minimizing the negative consequences of knowing what the real story is, democratizing the process, including more parents at the table, and identifying, improving, expecting, and monitoring elements of good teaching practice, not just monitoring the test scores.