By David J Quinn (Ed-S Candidate)
Florida Gulf Coast University
April 18, 2009
Literature review
In less than ten years, the No Child Left Behind Act has made a significant impact on education. Some experts argue that the act has provided resources to those that need it most, while others argue that the act is underfunded. Some researchers question the authority of the federal government to mandate state action in the field of education. In some states, the courts have made decisions that may lead to changes in the future of the act itself. Florida, in particular, has a unique approach to the matter, and it has its own sets of challenges due to court decisions and population demographics. In this literature review, the author will review the history behind the No Child Left Behind Act, offer various points of view on the act itself, analyze the issues affect on educational policy, and provide recommendations for future policy direction.
Since its inception, the No Child Left Behind Act of 2001 (NCLB) has generated substantial controversy over expanding role of the federal government in public K-12 education. THE NCLB, a revision of the 1965 Elementary and Secondary Education Act, calls for states and localities to hire highly qualified teachers, develop and implement challenging academic standards, set achievement targets for students, administer assessments to measure student progress, report data on all students, and face consequences if these requirements are not satisfied. (Umpstead, 2008, p. 193)
David C. Bloomfield and Bruce S. Cooper (2003) argued that the No Child Left Behind Act was the most dramatic change in national school legislation since the Secondary Education Act of 1965 (p. 6). Kathryn McDermott and Laura S. Jensen (2005) cited Rosenberg (1991):
Despite the U.S. Supreme Court’s invalidation of racial segregation in its 1954 Brown v. Board of Education decision, little desegregation occurred until the enactment of the Elementary and Secondary Education Act of 1965 (ESEA), which established federal aid for the purpose of enhancing the educational opportunities of disadvantaged children. Coupled with the Civil Rights Act of 1964, which barred organizations engaging in racial discrimination from receiving federal funds, ESEA provided the U.S. Department of Justice and Department of Health, Education, and Welfare (now the DOE) and Justice with leverage over recalcitrant state and local governments. (p. 44)
Furthermore, McDermott and Jensen (2005) cited Jennings (1998):
When Congress reauthorized the ESEA in 1994 with the Improving America’s Schools Act (IASA), it conditioned the receipt of ESEA Title I compensatory education funds on the establishment of state standards, standards-based testing, and systems of school accountability based on test results. (p. 44)
Next, McDermott and Jensen (2005) argued that NCLB builds on IASA by conditioning how federal funds were utilized. However, the authors (2005) stated that a provision of the law (S 6123) gives states and localities increased freedom to transfer federal funds amongst programs (p. 44). “Under another part of NCLB, entitled the State and Local Flexibility Demonstration Act, seven states and up to 80 school districts may gain even greater authority to direct the expenditures of federal funds in exchange for entering into performance agreements with the DOE (NCLB, S 6131-6156)” (McDermott, & Jensen, 2005, p. 44).
NCLB is designed to change the culture of America’s schools by closing the achievement gap between disadvantaged children and other student groups in U.S. public schools. Specifically, the introduction to the Act states as follows:
‘[t]he purpose of this subchapter is to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum proficiency on challenging State academic achievement standards and state academic assessments’.
To guide this effort, the law requires states to develop and implement academic standards, employ ‘highly qualified’ teachers, test students annually, report student scores, define and determine whether ‘adequate yearly progress’ (AYP) towards academic goals is being made, and impose consequences schools that do not make AYP, ranging from a requirement to provide extra services to students to total reorganization of the school. To receive funds under the Act, states must submit a plan to the U.S. Department of Education that outlines their commitment to comply with the key features of NCLB. (Umpstead, 2008, pp. 199-200)
According to McDermott and Jensen (2005), many state, local educators, and school officials question how much the federal government is intruding on their authority to establish policies and programs that are representative of their communities (p. 45). In addition, the authors (2005) pointed out the following:
They employ the conditional spending power in four especially novel and important directions to direct elementary and secondary education. These are the requirements that teachers be ‘highly qualified’ according to a federal definition, that curricula and teaching practices be validated by ‘scientifically based research’, that schools and districts meet a federal definition of ‘adequate yearly progress,’ and that a fairly specific sequence of interventions occur when schools or districts fail to make adequate yearly progress. (p. 45)
Regina R. Umpstead (2008) recognized that some experts see NCLB as an unfunded mandate because the increase in federal funding due to NCLB consisted of approximately two percent of the total K-12 appropriations (p. 202). According to Umpstead (2008), the federal government spent about thirty-six billion on education in 2006 which was approximately 8.3% of the total spent on education (p. 201). The author (2008) analyzed why the federal and state governments have a division of power on education:
The presence of an apportionment of power between these two entities is manifested in the Tenth Amendment of the U.S. Constitution, which declares that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ Since education is not explicitly mentioned in the U.S. Constitution, it is not specifically delegated to the federal government, and therefore lies with the states. Thus, Congress does not have a constitutional grant of authority to regulate directly education in the United States. (p. 202)
To determine whether Congress has invaded the authority reserved to the states by the Tenth Amendment, an inquiry must be made into whether Congress exceeded the limits of its authority conferred to it by Article I, Section 8 of the U.S. Constitution. (Umpstead, 2008, p. 203)
In South Dakota v. Duke, the U.S. Supreme Court specified five criteria for determining the constitutionality of Congress’ use of its spending power. First, the federal legislation must be in pursuit of the general welfare. Second, any conditions on the receipt of federal funds must be unambiguous, so that states may know the consequences of their participation. Third, the conditions must be related to the federal interest in national projects or programs. Fourth, other constitutional provisions must not prohibit the conditions. And fifth, the conditions or circumstances of the financial inducement offered by the federal government cannot be coercive so as to violate the Tenth Amendment. (Umpstead, 2008, pp. 204-205)
Rocco E. Testani and Joshua A. Mayes (2008) argued that Secretary of Education, Margaret Spellings, had interpreted NCLB as mandatory because she felt that if states wanted federal money, they would have to comply with all of the act’s requirements (p. 44). However, the plaintiffs in a court case against the government reiterated that they should be required to comply with NCLB only if the federal government covered all of the costs (p. 44). In the case of the School District of the City of Pontiac v. Secretary of the United States Department of Education, “The Court of Appeals determined that the unfunded mandates provision could have led states and school districts to believe that they needed to comply only with provisions of NCLB that were ‘fully funded’ by the federal government” (Testani, & Mayes, 2008, p. 44).
Therefore, the court concluded, the conditions under which the states and school districts agreed to accept federal funding were not unambiguous, as demanded by spending clause. In other words, the court concluded that recipients of federal education funding may not have understood the need to comply with NCLB’s requirements, even though the head of the agency in charge of handing out the money had expressly told the recipients what was expected before they accepted it. If the decision of the Court of Appeals stands, the plaintiffs will be excused from any NCLB requirements that they can prove are not fully funded by the federal government. (Testani, & Mayes, 2008, p. 44)
The Pinellas County School District in Florida challenged the implementation of the public choice school provisions of the No Child Left Behind Act because it would disrupt a controlled-choice plan enacted to comply with a court settlement in a desegregation case (DeBray, 2005, p. 170). Elizabeth H. DeBray (2005) recognized that the Pinellas case involved a conflict between a federal court ruling and a federal statute (p. 171).
The regulations for NCLB specify that local educational agencies must offer a choice of public schools to parents of all students in schools failing to make adequate yearly progress (AYP) as defined by the state for 2 or more consecutive years. The law requires districts to give parents a choice of more than one school, and to give priority to the lowest achieving children from low-income families. According to the regulations, districts may not use insufficient capacity as a reason to not offer choice; they state that districts must create additional capacity or provide choices of other schools. A prestanding desegregation order also does not exempt a district from compliance. According to the regulations, districts still operating under a court order are to go back to the federal judge and seek the necessary modifications to the plan. If the district fails to secure the court’s approval, it is technically out of compliance with Title I (Public School Choice, 34 CFR S 200.44(c)(3)). The basis for a challenge is that the Equal Protection Clause of the Fourteenth Amendment trumps a federal statute. (DeBray, 2005, pp. 171-172)
Consequently, in 2003-2004, all of the racially integrated schools in the South St. Petersburg area of Florida were judged to not be making AYP, and the legal and policy-related difficulties became paramount according to DeBray (2005, p. 179). DeBray (2005) cited Tobin (2004) on the following:
On April 30, 2004, school board attorney John Bowen filed a motion in the U.S. District Court in Tampa. He argued that most if not all of the 44 schools that failed to make AYP during 2002-2003 would fail again in 2003-2004. Based on this data, the county predicted that as many as 1,647 students at 44 Title I schools would elect to transfer if federal rules were allowed to stand, whereas 949 seats would be available. (p. 180)
When reviewing the ruling for Bradley v. Pinellas County (2004), DeBray (2005) stated that Judge Merryday cited Swann v. Charlotte-Mecklenburg (1971), Green v. County School Board of New Kent County (1968), and Brown v. Board of Education (1954) to support his position that the 2000 court order could not be amended. In addition, DeBray (2005) added that Judge Merryday denied the school board’s request for a hearing (p. 182). When he stated his opinion, Judge Merryday argued the following:
The motion fails to state an immediate and sufficient basis to excuse the school board’s complete compliance with the obligations of the final order, which enforces an arduously negotiated settlement agreement which is supported (or more exactly, compelled) by fundamental and pre-eminent principles of federal law. (DeBray, 2005, citing Bradley v. Pinellas County, 2004c, p. 185)
Matthew Ledner and Dan Lips (2009) found evidence that suggested that after seven years the No Child Left Behind Act had failed to yield significant improvements in student learning. In addition, the authors (2009) believed there had been unintended consequences of federal intervention (p. 1). Whereas, Lednar and Lips found positive results in Florida:
Florida’s experience with implementing aggressive education reforms over the past decade suggests that states can improve student learning. Before No Child Left Behind was enacted, Florida implemented reforms to establish academic standards, test students annually in core subjects, measure student progress, and hold public schools accountable for results. These systemic reforms also included creating new public and private school-choice options, implementing instructional reforms and intervention strategies to improve learning in core subjects, and enacting new strategies designed to hire and retain effective school teachers. (Ledner, & Lips, 2009, p. 1)
On the other hand, Ruben Lopez, Florida’s Chief Technology Officer, recognized that requiring intensive and sustained professional development for teachers was a key feature of NCLB legislation (Miller, 2003, p. 10). “Providing teachers with real opportunities to advance their knowledge of modern technology-based learning tools and the most effective teaching methods will positively impact schools in Florida” (Miller, 2003, p. 10). Miller (2003) stated that Lopez also stated that NCLB’s Enhancing Education Through Technology grant program funds are being awarded to support research-based technology integration, and he wrote that Lopez declared that Florida had developed a STaR Chart for Florida schools (p.10). “The Florida STaR Chart, which was modeled after the CEO Forum on Education & Technology’s STaR Chart, will serve as a guide for school progress in education technology” (Miller, 2003, p. 10).
Former Florida governor Jeb Bush had mixed emotions on the No Child Left Behind Act. In Education Next in 2007, Bush stated the following: “Thanks to the No Child Left Behind Act, policies such as annual testing and reporting of results to parents cannot be eliminated completely” (p. 22). However, he considered the most problematic areas of NCLB to be this: “For states like Florida that already had a strong accountability plan in place, the federal law should have been more flexible. For example, if Florida, Texas, and Tennessee can measure progress of individual students over time, our state plans should be allowed to factor in student progress in addition to proficiency” (2007, p. 23). Jeb Bush also believed that there should be more options for rating schools than just making AYP or not making AYP (2007, p. 23).
Florida’s A+ Plan for Education (A+ Plan) rewards schools for ensuring that their students reach a minimum level of proficiency in math and reading, just as NCLB does. But unlike the federal grading system, the A+ Plan bases half of its points on the percentage of students in each school who improved their performance against state standards over the previous year. Equally important, it divides schools into five easily recognized categories that range from A to F, instead of just the two bureaucratically labeled categories employed by the federal government. (Peterson, & West, 2006, p. 78)
Paul E. Peterson and Martin R. West (2006) found Florida’s method of measuring progress to be a better measuring stick than the federal government’s method of using AYP (p. 76). “Florida’s grading system divides schools into five different categories, just as teachers do when they grade students on a scale from A to F” (Peterson, & West, 2006, p. 76).
NCLB requires states to divide schools into those making ‘Adequate Yearly Progress’ (AYP) toward the goal of having all of their students proficient in math and reading by 2014 and those that aren’t. While the term ‘progress’ would seem to imply that the law considers how much students are learning over time, the federal system in fact is based on a series of snapshots that fail to track individual students from one year to the next. (Peterson, & West, 2006, p. 77)
Based on statistical research, Peterson and West (2006) found about nine percent of a standard deviation difference in math achievement between schools making AYP versus schools not making AYP. Therefore, the authors (2006) concluded that there was only about one third of a year difference in performance, and that indication is not large enough to indicate that one school is adequate while another is not (p. 78). On the other hand, the same authors (2006) found a gap of 25 percent of a standard deviation between A and F schools based on Florida’s system of grading schools. This equated to a full years difference in learning between the schools that received an A versus the schools that received an F (p. 79). Furthermore, Peterson and West (2006) discovered a significant error rate in based on the AYP system of grading schools; “In math, a school that made AYP outperformed a random non-AYP school 71 percent of the time. In other words, 29 percent of the time the school in which students are making smaller gains is the one that passed AYP, a pretty hefty error rate” (p. 78).
Lance D. Fusarelli (2005) stated that governors probably would utilize NCLB to leverage change within the educational system and to advance their own agenda. “Far from disempowering governors, NCLB may well embolden governors to stake out new terrain and change their state educational systems in significant and profound ways” (p. 133). In addition, Fusarelli (2005) recognized a complete change in the Florida system when he cited Conley (2003) who cited Richard (2002):
In Florida, Governor Jeb Bush initiated a comprehensive overhaul of educational governance—a redesign that created a new governing board with authority over all public education (K-12 and postsecondary), in addition to creating the position of state education secretary. Both the state education secretary and members of the new governing board are appointed by the governor. (p. 123)
Thomas M. Brewer (2003) purported that Florida had opened the back door by starting alternative certification to meet the demands of NCLB. “Beginning with the 2002-2003 school year, Florida school districts offered a competency-based, alternative professional preparation/certification program” (p. 4). Furthermore, Brewer (2003) stated the following: “The competency-based programs provide on-the-job training for newly hired instructional staff who qualify for a temporary certificate on the basis of their knowledge of the subject but who have not yet completed a traditional university teacher preparation program” (p. 4).
William J Mathis (2005) recognized that NCLB has not been funded adequately (p. 115). Julia Koppich (2005) quoted and referenced NEA president Reg Weaver who believed the NEA should find a plaintiff and sue the federal government because he believed that NCLB was an unfunded mandate and thereby violated a section of the law that stated: “Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government to mandate a State or any subdivision thereof to stipend any funds or incur any costs not paid for under this Act” (p. 143). Mathis (2005) argued that most research showed that children with disabilities, lack of language skills, or poor social environments would need additional funding (p. 97).
Based on 40 separate adequacy studies, additional new costs to give all students standards-based opportunities are conservatively estimated at 27.5% or $137.8 billion in new money. Thus, implementation of the administrative and learning opportunities aspects of the law would require a new sum of $144.5 billion or an increase of 29% in educational spending. (Mathis, 2005, pp. 91-92)
Moreover, Mathis (2005) found that some states have faced coercion. For instance, he pointed out that Federal Deputy Secretary Hickok told the Utah state superintendent, Steve Laing, the following: “The rejection of state Title I money would result in serious consequences to other programs” (p. 114).
Regina R. Umpstead (2008) disagreed with Mathis because she argued that NCLB was not an unfunded mandate. Umpstead (2008) offered the following summary:
Having examined legal support for the law, this article makes clear that, even though NCLB has generated a lot of controversy in the educational community, its passage is within the scope of Congress’ Spending Clause power. Therefore, NCLB is best characterized as a permissible promotion of the federal education ideal of improving the educational quality of all students in this country, rather than as an unfunded mandate. (p. 229)
David A. Granger (2008) found that the dropout rates for Limited English Proficient students, students of color, and those living in poverty had “increased markedly in the wake of NCLB” (p. 208). Furthermore, Granger (2008) cited Fuller (2007) who declared that there is “no evidence indicating that NCLB has contributed positively to students’ performance on nationally administered tests, including stalwarts like the Scholastic Aptitude Test and ACT” (p. 208). In addition, Granger referenced Smith (2003) who saw NCLB as “aggressively punitive” (p. 213). The author (2008) hypothesized that many high quality teachers are being driven away from the profession due to some of the consequences leveled on failing schools:
In pursuit of justice, as envisioned within NCLB, ‘failing’ schools (those not making Adequate Yearly Progress, AYP) are put on ‘the list’, must allow students to transfer to other schools in the district (a school ‘choice’ option) while defraying the transportation costs, and must give students the option to use their portion of Title I (ESEA) funds to pay for tutoring or other supplemental educational services (which can be provided by private companies). And if these schools are still ‘failing’ after five years (McGuinn 2006, 178-179). Consequently, schools that remain on the list for more than a year are met with federal funding cuts or have funds siphoned off, must teach-to-the-test or use rigidly scripted lessons, and face staffing changes to replace purportedly ‘incompetent’ teachers. (A distressing irony has often been noted here in that many potentially high quality teachers are doubtless being driven away by this scapegoating climate.) In New York State alone, according to 2006 figures, there are a total of 506 schools and 56 districts identified as ‘In need of Improvement’, with a disproportionate number (83%) of those being poorer urban and rural schools and districts that serve students of color. (p. 219)
How do the issues affect educational policy?
Based on the research, the No Child Left Behind Act is not helping as many people as it initially intended. The funding up until now has been inadequate and some of the populations that were supposed to benefit may have been adversely affected. On the other hand, schools and students have benefitted from increased technology in schools that otherwise would not have been able to afford the equipment. Funding for education has become an increasingly heated debate, and some think the federal government should do more in order to provide more equal opportunity in education. On the other side, some feel the states should have more control, and they think the governors will ultimately shape future decision-making. The courts may also have some impact if the federal government becomes too coercive when applying the consequences of NCLB, and they would most likely apply legal precedent. Some of the biggest issues pertain to how much the federal government can do to enforce its legislation and how much it will want to do when it considers the cost involved. Furthermore, there are significant issues involving measurement because the AYP system may be inadequate when compared to states like Florida. Also, the states are using a variety of test instruments, so it may be difficult to obtain consistency unless there is a national test. Ultimately, some schools and school districts may have to make difficult choices in order to comply with the increased demands of NCLB. Most experts think that the goals are unrealistic. Overall, in my opinion, there needs to be legislature involved in instituting positive changes that everyone can work with if The No Child Left Behind Act is to achieve its intended purpose.
Recommendations for future policy direction
Thomas M. Brewer (2003) recognized that the state, the federal government, the public schools, and the colleges and universities all have to be involved in shaping policy change in the future. Brewer (2003) suggested creating more certification reciprocity between the states, encouraging colleges and universities to help in certifying and preparing more teachers, reemphasizing disciplinary integrity, promoting continuing education at the district level, and balancing expectations at the federal level (p. 9). The author (2003) argued the following: “Remember also that students and teachers are the most important component in the system” (p. 9).
Over six years later, there still is much confusion of how to fund education. The federal government is becoming more involved, but many essential people are facing cutbacks. In order to achieve many of the goals and implement many of the programs, the whole system needs to be addressed. For instance, we cannot increase intervention programs that require increased counseling but then cut back significantly on counseling hours. In order to provide for sustainable change in education, there needs to be a long-term plan with all of the stakeholders involved in consensus building. Educators will have to be involved in the politics in order to obtain the funding that is required to achieve the objectives of any national initiative like NCLB. In conclusion, there needs to be increased coordination at all levels for the long-term benefit of education in the future for the No Child Left Behind Act to be successful, and it will probably need revising in order to work.
References
Bloomfield, D., & Cooper, B. (May, 2003). NCLB: A New role for the federal government. T.H.E. Journal, 30(10), 6-9.
Brewer, T. (2003). The “Grand Paradox” in teacher preparation and certification policy. Arts Education Policy Review, 104(6), 3-10.
DeBray, E. (2005). NCLB accountability collides with court-ordered desegregation: The case of Pinellas County, Florida. Peabody Journal of Education, 80(2), 170-188.
Fusarelli, L. (2005). Gubernatorial reactions to No Child Left Behind: Politics, pressure, and education reform. Peabody Journal of Education, 80(2), 120-136.
Granger, D. (2008). No Child Left Behind and the spectacle of failing schools: The mythology of contemporary school reform. Educational Studies, 43(3), 206-228.
Koppich, J. (2005). A tale of two approaches—The AFT, the NEA, and NCLB. Peabody Journal of Education, 80(2), 137-155.
Matthis, W. (2005). The cost of implementing the federal No Child Left Behind Act: Different assumptions, different answers. Peabody Journal of Education, 80(2), 90-119.
Mc Dermott, K.A., & Jensen, L. (2005). Dubious sovereignty: Federal conditions of aid and the No Child Left Behind Act. Peabody Journal of Education, 80(2), 39-56.
Miller, M. (May, 2003). Q&A: Ruben Lopez, Florida’s chief technology officer. T.H.E. Journal, 30(10), 10.
Peterson, P.E., West, M.R.(Eds.). (Fall, 2006). Is your child’s school effective? Don’t rely on NCLB to tell you. Education Next, 6(4), 76-80.
Testani, R., & Mayes, J.A. (Summer, 2008). Accountability left behind. Education Next, 8(3), 43-45.
Umpstead, R.R. (April, 2008). The No Child Left Behind Act: Is it an unfunded mandate or a promotion of federal ideals? Journal of Law & Education, 37(2), 193-229.
The Education Governor. (Summer 2007). Education Next, 7(3), 19-25.