Eleven Changes Needed To Improve NCLB

October 12, 2005

NEA originally released this document in January 2004. Since then, both former Secretary of Education Rod Paige and current Secretary Margaret Spellings have announced several changes to the NCLB rules. The IDEA reauthorization made additional changes to the "highly qualified" rules under NCLB for special education teachers. The U.S. Department of Education (DOE) adopted parts of six NEA proposed changes, validating the NEA position that common-sense changes to NCLB are needed. However, much more needs to be done and additional resources need to be provided to remedy the law's unintended consequences.

1. Expand school accountability beyond the percent of students who score proficient on a single day on two tests (reading and math), the current measure.
   

   NEA proposes allowing states to incorporate additional measures into a school accountability index. Such measures could include attendance, graduation and dropout rates, percentage of students taking honors and AP classes, and results from other state and local assessments.
   
   Under NCLB, schools get no credit for positive improvements on any academic indicator other than the reading and math test score. However, other academic indicators are credited towards a school's deficiencies, increasing the number of schools that fail to make Adequate Yearly Progress (AYP).

2. Provide additional flexibility in the use of test scores to measure schools.
   

   NEA proposes allowing states to utilize AYP academic growth models that acknowledge progress in student achievement both over time and within the school year.
   
   Under NCLB, states and schools are limited in how test scores are used to measure school performance. A snapshot of the percent of students proficient or above on the day of the test is the only measure allowed. Unless schools meet their yearly proficiency percentage target, they get no credit (with the limited exception under Safe Harbor) for growth in the percentage of students who are proficient over time, or for raising student achievement levels, such as from below basic to basic, or from proficient to advanced levels. Schools get no credit for longitudinal growth in student achievement, such as how students in a particular grade have improved from the beginning to the end of the school year, or how a group of students have improved as they advance in grade level.

3. Provide flexibility in the current requirement that 95 percent of students overall and in each subgroup must take the test.
   

   NEA proposes that reasonable flexibility be provided, such as lowering the 95 percent participation to 90 percent, allowing averaging participation over three years (as is now allowed in averaging test scores over three years), and setting an absolute minimum number of students (such as 5-10) in a subgroup who fail to take the test before a school fails to meet the AYP participation requirement.
   
   Under NCLB, a school will fail AYP if just one subgroup of students falls one percentage point short of the required 95 percent participation rate, even if all students exceed the required proficiency levels. Nationwide, thousands of schools have been labeled as failing to meet federal standards because literally one or two students did not take the test.
   
   Note: On March 29, 2004, Secretary Paige adopted part of this NEA proposal, by allowing states to average test participation rates by up to three years. He also is allowing states and schools to exempt from the participation requirement students who were absent due to a medical emergency. However, he did not lower the threshold as NEA proposed from 95 percent to 90 percent, nor set an absolute minimum number of children to be absent before a school fails to make AYP.
   

4. Provide flexibility and more reasonable rules for assessing English language learners (ELL).
   

   NEA proposes exempting students from the participation requirement until they have been in the United States for one full academic year. Although newly arrived immigrant students may be exempt from taking the required reading test, they must take the required math test, even if they have been in this country for only one day.
   
   NEA further proposes giving states the option to exempt from AYP purposes test scores for ELL students until they have been in the United States for three years. They would still be required to take the tests (after their first year) and have their scores reported by subgroup as well as take an annual test of their English language proficiency. Since standardized reading and math tests are not available in the multitude of languages spoken by students, most students take the test in English prior to being proficient in English.
   
   Also, students who become proficient in English should still count in the ELL subgroup for three years. Otherwise, it is statistically impossible for this subgroup to ever reach the 100 percent proficiency level in reading in English, since the criteria for being in the ELL group include not being proficient in English.
   
   Note: On February 19, 2004, Secretary Paige announced new policies that implement parts of this NEA proposal. States are now allowed to exempt from taking the reading test immigrant students who have been in the United States for less than one year. However, such students must still take the math test. In addition, states may now count "exited" ELL students in the ELL subgroup for up to two years.
   

5. Provide flexibility and more reasonable rules for assessing students with disabilities.
   

   To ensure that students with disabilities are not inappropriately assessed, NEA proposes that each child's Individual Education Plan (IEP) determine the appropriate assessment for that child (including the regular grade-level assessment, a grade-level assessment with accommodations, an assessment based on alternate or modified academic standards, or an out-of-grade level assessment), and that scores from such assessments be used for determining AYP.
   
   The Individuals with Disabilities Education Act (IDEA) is focused on meeting the educational needs of each individual child with a disability. NCLB, however, treats students with disabilities as one group for assessment and accountability.
   
   Note: On December 9, 2003, former Secretary of Education Paige issued a regulation that allows students with the most significant cognitive disabilities to take an assessment based on alternate academic standards. This policy limits the number of proficient scores based on alternate achievement standards that qualify for meeting AYP to no more than 1 percent of all test scores in a district or state.
   
   In addition, on May 10, 2005, Secretary Spellings issued a new policy that allows states to establish modified achievement standards and tests based on such modified standards. Students with disabilities who need additional time to reach grade-level standards can take such tests. A new 2 percent cap on the number of proficient scores based on modified standards that qualify for meeting AYP is created. The new 2 percent cap is in addition to the 1 percent cap for the students with significant cognitive disabilities group. However, not all states may implement this new 2 percent policy -- they must meet certain additional criteria to do so.
   
   While these changes are steps in the right direction, they impose artificial caps on the number of proficient scores that may actually count towards AYP. Allowing the IEP team to determine which test is the most appropriate for each child is a simpler, fairer, and more valid policy.

6. Limit the designation as a school in need of improvement, corrective action, or restructuring to schools where the same subgroup of students fails to meet AYP in the same subject for two or more consecutive years.
   

   An NCLB example: If every subgroup met AYP in both reading and math in 2004, except for Hispanic students in reading, and in 2005 the school improves Hispanic student achievement in reading, but one other subgroup fails to meet the proficient level in reading, the school is considered to have failed to meet AYP for two consecutive years and is designated a school in need of improvement. The school, however, successfully addressed and removed the first year's deficiency, the needs of Hispanic students in reading.
   
   While the DOE has said that states may limit identifying schools for improvement to only those where one or more subgroups fail in the same subject, it has refused consistently several states' requests to limit school improvement identification to the same subgroup in the same subject.

7. Target choice and supplemental services to students in the particular subgroups that are not meeting AYP standards.

   Under NCLB, if just one subgroup fails to meet AYP standards, then ALL students in the school, not just those in the subgroup failing to meet AYP standards, or those who are individually not proficient, have the right to paid transportation to another public school that has made AYP. While the supplemental educational services option is limited to low-income children, it again is not targeted to those needing the most academic help. Targeting these options to specific subgroups will ensure that students with the greatest needs get the assistance.
   
   Further, the logistics of the current provisions of the law have created additional problems. Under AYP as it is currently structured, in the 2004-05 school year, 21,350 schools failed to meet AYP for at least one year, with 10,992 failing to make AYP for two or more years. Over time, ever-increasing numbers of children will be seeking ever-fewer spots in other public schools, resulting in overcrowding, increased class size, and possible resegregation problems.

8. Recognize the unique teaching responsibilities of special education teachers.

   NEA proposes that a special education teacher who is fully licensed and certified in special education should be considered to meet the NCLB highly qualified rules.
   
   Many teachers of students with disabilities teach multiple subjects. Under NCLB such teachers must demonstrate content knowledge in each and every subject. Doing so places an unreasonable and possibly unobtainable burden on special education teachers and makes it even more difficult for schools to address the shortage of qualified special education teachers.
   
   Note: The reauthorization of the Individuals with Disabilities Act (IDEA), enacted in December 2004, included some improvements in the NCLB highly qualified rules for special education teachers. While a step in the right direction, the new rules are complex, provide no additional time for special education teachers to comply, and fall short of recognizing fully licensed/certified special education teachers as highly qualified.

9. Recognize the unique situation of small rural schools in meeting the highly qualified teacher requirement.
   

   NEA proposes that states be given flexibility in how rural schools in general, and small rural schools in particular, meet the highly qualified requirements. Further, the restrictive definition of rural schools used in the March 2004 DOE rule excludes many rural schools and should be broadened. Rural schools face a difficult challenge. Due to their small size, it is not possible for them to have separate fully certified and licensed biology, chemistry, physics, and earth science teachers.
   
   Note: On March 15, 2004, Secretary Paige announced three new policies on "highly qualified" teachers that adopt parts of this NEA proposal. Under the revised policies, current teachers in certain rural school districts who teach multiple subjects have one additional year (until the end of the 2006-07 school year) to become highly qualified in such additional subjects (provided they are highly qualified in at least one subject by the end of the 2005-06 school year). Newly hired teachers in rural schools will have three years from their date of hire to become highly qualified in additional subjects they teach (provided they are highly qualified in at least one of their subjects upon hiring).
   
   In addition, states that have a "broad-based" science certification can consider teachers with such certification to be "highly qualified" in any science discipline. Finally, states may establish a streamlined process under the High Objective Uniform State Standard of Evaluation (HOUSSE) for teachers of multiple subjects to demonstrate they are competent in each of their subjects.
   
   While these policies allow teachers in some rural schools more time to prove their "competency" in multiple subjects, and allow a streamlined process for other teachers, they still require such teachers to prove their competency in each of the multiple subjects they teach. The policies also fail to recognize broad-based certification in social science. In addition, the overly restrictive definition used for a rural school has resulted in some states not having any schools that qualify for this flexibility. Finally, DOE has said that it is optional for states to have a HOUSSE. NEA believes the law requires that each state establish a HOUSSE.

10. Provide the resources and flexibility for Title I paraprofessionals to meet NCLB requirements.
    

    NEA proposes that school districts using federal funds pay any costs incurred by paraprofessionals or provide them the training needed to meet the new requirements. In addition, the law should make clear that each paraprofessional has the right to decide which of the three options to use to meet the standard.
    
    Under NCLB all Title I paraprofessionals must either have an associate degree, two years of college courses, or meet a state or local assessment of their knowledge of and ability to assist with instruction in reading, writing, and math. Since the average salary of a paraprofessional is only $17,300, paying for any needed college courses, test preparation, or the cost of tests is a major financial burden for most paraprofessionals.
    
    Finally, the date for paraprofessionals to meet the NCLB job qualification requirements-- January 8, 2006 -- should be extended until the end of the 2005-06 school year, in order to align it with the school calendar and match the date provided for teachers to meet their highly qualified requirements.
    
    Note: On June 17, 2005, Deputy Secretary Ray Simon announced that the paraprofessional deadline would be extended until the end of the 2005-06 school year to align it with the deadline for teachers to meet the highly qualified rules.

11. Ensure that federal funds do not subsidize discrimination.
    

    NEA believes that any entity receiving funds under any ESEA program must fully comply with all federal civil rights laws. The DOE has ruled that federal civil rights laws generally do not cover supplemental education service providers. In addition, DOE has said that any faith-based entity receiving funds under ESEA programs may discriminate on the basis of religion in employment.
    
    Finally, NEA proposes that, just as public schools must serve all students, so should supplemental service providers. In another ruling, DOE has determined that supplemental service providers are not required to serve students with disabilities or limited-English proficient students.