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Most States Are Seeking Amendments to Their Accountability and Assessment Plans to "Fix" Problems Created By NCLB Provisions and USED Interpretations Using New StrategiesAn increasing number of states are using new strategies for requesting USED approval of amendments to their NCLB Accountability and Assessment plans. April 1 is the USED deadline. Strategies vary from using hard data to justify changes to citing provisions in the Law which forbid Federal intrusion on state curriculum and accountability systems and which allow USED to use its waiver authority. As Scott Young, Senior Policy Analyst at the National Conference of State Legislatures noted in Education Week (February 2), some state strategies are "to work within the language of the law and use some of these tools, like the waiver provision and Section 9527 to really put an emphasis on the state accountability system as an alternative to No Child Left Behind." Section 9527 states that NCLB cannot authorize USED "to mandate, direct, or control a state, local education agency, or school's curriculum, program of instruction, or allocation of state or local resources, or mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act." One such state, Utah, which threatened to refuse NCLB funding last year, now in pending state legislation (HB 135), would seek waivers on NCLB requirements; and to fully implement the law the state or districts would have to spend their own money, which violates Section 9527. Other states such as Virginia and Connecticut are justifying their waiver requests based upon hard data and evidence regarding the unintended consequences of NCLB implementation during the last two or three years. One bill submitted in the Virginia Assembly would conduct an audit of the cost of meeting Federal NCLB requirements. Another bill would allow the state to offer supplemental educational services (SES) for schools identified for improvement for the first time (rather than provide parents with the transportation option) and SES would be provided only for students that miss their proficiency targets. Connecticut has requested waivers for greater flexibility in several areas including amendments to allow continued testing under their state accountability systems for grades 4, 6, 8, and 10 instead of grades 3 through 8 as NCLB requires. Connecticut continues to be among the highest performing states on the National Assessment of Education Progress. Similarly, Missouri has requested, and received approval, to reduce its 2004-05 proficiency targets for subgroups of students, citing that the same percent of fourth grade students scored at the proficiency level on the state reading test in 2003, as on the NAEP. Rather than having to raise the proficiency bar significantly this year, the state will be allowed to use a more linear trajectory over ten years. The flurry of state activities now can be attributed to a number of factors. While most of the Republican leadership in Congress and some key Democrat leaders have opposed seeking amendments to NCLB in the recent past, new Secretary Spellings has called for a "reasonable" and "sensible" approach and, as a pragmatist, is felt to be more flexible than her predecessor in addressing "fixes" through the Non-Regulatory Guidance route. In addition to Secretary Spellings' in-depth understanding of the letter of the Law and its underlying intent, there is one additional reason for state optimism that some of the unintended consequences of the Law will be "fixed" -- namely, the peer review requirement as part of USED's overall review of state-requested amendments to their Accountability and Assessment Plans prior to the April 1 deadline. If most states submit requests for identical or very similar waivers or other amendments, then such unanimity among state officials reviewing each other states' requests suggest that these changes are likely to be recommended for approval. For example, according to a recent CCSSO report, over 40 states requested but were denied requests to offer supplemental educational services prior to or at the same time as parent transportation options in schools identified for improvement for the first time. Under Secretary Paige and Deputy Secretary Hickock, these last minute requests after the USED deadline last year were denied outright. Peer reviews of proposed amendments from Maryland, North Carolina, South Carolina, Texas, and West Virginia, began on February 16-19. As we reported shortly after the passage of NCLB, the negotiated peer review process as another element in the overall legal framework for NCLB provides another avenue by which support for changes of key provisions that had clearly unintended consequences in certain states could be mustered; this, in turn, would allow USED to discover "newly found flexibilities" in regulations and Non-Regulatory Guidance (as happened last February and March) without generating negative Congressional "oversight." Questions, ideas, or in need of more information? Please contact Dave Gladney at 856-241-7772 or dgladney@AEPweb.org.
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