The Leadership Conference on Civil and Human Rights

The Slow Progress of Federal Education Reform

Dianne Piché
Commentary

Ensuring that every child in the United States has access to high-quality education is one of our nation’s most important responsibilities and a vital imperative to maintaining our leadership role in the world. And yet, there is no question that we are failing in our responsibility to our nation’s most vulnerable children—poor children, minority children, children with disabilities. By nearly every measure used to assess the educational gains of American children, these children are falling behind.

The primary responsibility for educating children rests with the states, but states have never done well at educating all children. While No Child Left Behind (NCLB) —the current version of the nation’s primary federal education law, the Elementary and Secondary Education Act (ESEA)—has often come under fire for a number of its requirements and provisions, the law has brought needed attention to the progress of student subgroups often overlooked within overall student populations and has pushed states to make improvements.

The law is long overdue for reauthorization so that it meets the needs of today’s students. But Congress is deeply divided on how best to strengthen the law and, as a result, is moving slowly in reauthorizing it.

No Child Left Behind Waivers
In light of the 112th Congress’ inability to strike bipartisan compromise on the best way to renew the law and with NCLB’s 2014 looming deadline for schools and districts to demonstrate that all kids have reached grade-level “proficiency” in reading and math, the Obama administration proposed in late 2011 a plan to offer states waivers from some NCLB requirements in exchange for a set of reforms.

Waivers allow the U.S. Department of Education to grant flexibility to states with respect to such requirements as NCLB achievement targets, those that call for school choice and free tutoring in low-income schools whose students have not met achievement goals. In exchange, states must adopt college and career-ready standards (or something comparable) for all students; create their own accountability standards and support systems; report achievement results to parents and to the public by subgroups; report graduation rates; and implement statewide teacher-evaluation systems that use student performance as a component. However, regardless of these waivers, the federal government will provide oversight and levy sanctions if students do not meet achievement targets.

Despite skepticism regarding the waiver of key provisions of a federal law designed to close achievement gaps and improve learning conditions in high-poverty communities, The Leadership Conference on Civil and Human Rights, along with a number of other civil and human rights groups, worked with the administration to ensure that the plan was developed in a way that would prevent states from abdicating their responsibility for educating all students. Measuring student achievement by subgroups—including minorities, low-income and special education students—and setting high expectations for those students, remains an important bedrock principle for the civil and human rights community. As a result, the waiver plan maintains the critical tenet of federal oversight and a focus on achievement gaps between White and minority students; more affluent students and their low-income peers; and students with disabilities and other students.

Instead of identifying schools that fail to meet the federal achievement targets or make adequate yearly progress (AYP) under NCLB, states with waivers must instead focus on “priority” schools, defined as the lowest performing 5 percent of schools and high schools with graduation rates under 60 percent. Once identified, states must develop and implement their own interventions based on a set of federal turnaround principles that range from redesigning the school day to emphasizing the use of data. In addition, states also must identify “focus” schools—i.e. the 10 percent of disadvantaged schools with the largest academic achievement gaps between subgroups of students—and develop plans to improve them.

During the crafting of the waiver plan, the civil and human rights community was adamant that the Department of Education require states to consult with local community-based organizations, parents and other stakeholders given the radical changes to education policy that would be taking place. But by early 2012, it was clear that the consultation was not happening.

Prior to the approval of the first set of waivers, the Campaign for High School Equity (CHSE), a diverse coalition of national organizations representing communities of color that believe high schools should have the capacity and motivation to prepare every student for graduation, college, work, and life, sent a letter to the department signed by eight organizations, including The Leadership Conference, the National Urban League, and National Council of La Raza (NCLR), outlining its concerns:

“The civil rights community is disheartened that some states did not take more seriously the requirements regarding consultation with stakeholders in the Department of Education’s guidelines for waiver applications. … [I]n Colorado, New Mexico, and Georgia, for example, CHSE’s local affiliates and partners were not meaningfully engaged in the development of their respective states’ waiver applications. Many of our affiliates were not contacted by their states. In light of how schools have historically underserved students of color and Native students, CHSE is disappointed that some states did not demonstrate real engagement with our civil rights organizations.”

In addition, The Leadership Conference called for strict oversight of waiver regulations by the Department of Education to ensure that the achievement of struggling students, particularly minority and low-income students, are not disguised when measuring achievement or targeting and implementing interventions.

In a February 9 statement following the department’s announcement of the first 11 state waivers, Nancy Zirkin, executive vice president of The Leadership Conference, said that the move “should in no way be construed as giving a free pass to any state to ignore their obligations to educate every child. States have made many hollow promises in the past, under both No Child Left Behind and the Improving America’s Schools Act, and it will be critical for the administration to ensure that states deliver this time.”

However, as states begin to operate under these waivers, concerns have arisen. While states must identify schools that graduate less than 60 percent of their students, states vary greatly in their approach to graduation-rate accountability. For example, Georgia plans to use a five-year cohort graduation rate in its school rating system. Aside from violating the 2008 federal regulation that established a four-year cohort graduation rate, triggering interventions and accountability based on a five-year rate will hide disparities in student achievement, produce data that is incompatible across the country, and create a disincentive to ensuring all students graduate on time.

Policymakers and civil rights groups also were worried that some states’ plans would mask poor performance of certain groups of students, particularly minority and low-income students. In a January 17 letter to Education Secretary Arne Duncan, Rep. George Miller, D. Calif., ranking member of the House Education and Workforce Committee, and Sen. Tom Harkin, D. Iowa, chairman of the Senate Health Education Labor and Pensions (HELP) Committee, expressed concern that under some waivers, states intended to combine several categories of students together into one “super-subgroup” for accountability purposes.

“We fear that putting students with disabilities, English language learners and minority students into one ‘super subgroup’ will mask the individual needs of these distinct student subgroups and will prevent schools from tailoring their interventions appropriately,” the letter noted. The Miller-Harkin letter urged the federal government to closely evaluate waiver requests seeking that mode of flexibility and to make sure to enforce accountability provisions.

Slow Progress on ESEA Reauthorization
By late 2012, the Department of Education had granted 34 states and the District of Columbia waivers. Meanwhile, Congress made incremental progress moving legislation to reauthorize ESEA.

In the Senate, the ESEA reauthorization bill has been stalled since October 2011, when it was approved by the HELP Committee. Although that bill keeps some of the key NCLB accountability provisions in place—including a requirement that states adopt academic standards and implement a system of statewide assessments aligned with the standards—many civil and human rights groups withheld support for it, calling the bill “flawed” for its lack of federal oversight and its requirement to improve only a small number of low-performing schools. In particular, civil and human rights groups criticized the bill for failing to require states to set any measurable achievement and progress targets or even graduation rate goals.

The bill made little progress toward the Senate floor in 2012. Harkin, the bill’s sponsor, has said he would not seek a floor vote for the legislation until the House passed a bipartisan ESEA reauthorization bill.

In the House, GOP-backed legislation to reauthorize the Act moved forward fitfully—and in a piecemeal fashion. On February 28, the House Education and the Workforce Committee approved two pieces of legislation introduced by Chairman John Kline, R. Minn., which would reauthorize portions of the ESEA, but also would significantly decrease the federal role in education even more than the Harkin bill.

In the face of the vigorous objection from the civil and human rights community, the committee approved Kline’s Student Success Act, which would dismantle a key accountability provision of NCLB. The bill seeks to scrap NCLB’s goal of adequate yearly progress for students and subgroups of students, and essentially free schools from having to meet specific achievement goals, with no penalties for missing academic targets. The bill also would give states flexibility to use federal education dollars at their own discretion instead of specifically directing them toward federally required purposes and student populations, such as low-income students.

In a January 24 letter to Kline, a coalition of nearly 40 civil rights organizations, including The Leadership Conference, NCLR, and NAACP, along with the U.S. Chamber of Commerce, opposed the legislation, calling it a “rollback” that “undermines the core American value of equal opportunity in education embodied in Brown v. Board of Education.”

Kline’s bill would “thrust us back to an earlier time when states could choose to ignore disparities for children of color, low-income students, [English language learners], and students with disabilities. The results, for these groups of students and for our nation as a whole, were devastating,” the letter said.

On their own, states have a history of failing to set meaningful achievement targets for students, adopting vague or low targets for achievement. Before the enactment of NCLB requirements to focus on the achievement of subgroups like minorities, students with disabilities, and English language learners, only two states had included the performance of individual groups of students in their accountability systems. Some civil rights groups say it seems unlikely that states would make disadvantaged students a priority if given the freedom to set their own standards and goals without federal accountability.

While Kline’s legislation passed out of committee, an amendment introduced by Rep. Glenn Thompson, R. Pa., which would have overhauled the distribution of Title I money intended to aid schools with significant populations of disadvantaged students, was defeated in committee vote of 22-16. The amendment would have altered the formula to favor smaller, rural schools over high-population, urban areas.

Conclusion
The Elementary and Secondary Education Act was due to be reauthorized five years ago, but the deep divisions in Congress are such that the prospects of reauthorization are slim. The NCLB waivers, which are for two years, are a temporary and incomplete fix to a problem Congress will have to address soon – by reauthorizing and strengthening the law. The civil and human rights community will continue to stress the need for a reauthorization bill that maintains a strong federal role in equity and accountability; requires states and districts to close gaps in such areas as achievement, high school graduation, and discipline rates; and undertakes meaningful interventions to improve low-performing schools and those with significant achievement gaps.

Dianne Piché is a senior counsel for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund and specializes in education policy.

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