January 8, 2004

The Honorable Roderick R. Paige
Secretary
Department of Education
400 Maryland Ave. S.W.
Washington, DC 20202

Dear Secretary Paige:

We are writing to urge you to support a more effective effort to implement the No Child Left Behind Act. Two years ago, by enacting that landmark Act, Congress and the Administration made a clear federal commitment to improve the education of millions of students across the country. But the potential of the Act has yet to be realized in large numbers of communities because of the failure to properly implement and fund the law. Last year alone, the Act was underfunded by $7.5 billion. Underfunding by such a drastic amount undermines not only successful implementation, but the very spirit of the law.

Congress and the Administration can do more through the Act’s reforms to bring the promise of a quality education for all to schools across the country. The leadership in the nation’s public schools is up to the task of helping every child succeed. Recently, we received a letter from over 200 school superintendents, leaders of education, and civic leaders from all parts of the country, affirming their support for the high standards and strict accountability contained in the Act. Despite the commitment of these leaders and school districts nationwide, implementation of many of the law’s provisions pose an immense challenge. States and schools that have committed to the reforms in the Act have been undermined by the failure to provide the necessary funding and proactive and timely assistance on a variety of levels.

Leadership and Technical Assistance

We are greatly disappointed with the delay by the Department in releasing regulations and guidance on the Act. Too often, states and school districts have been left without appropriate guidance. As a result, misinformation and speculation are rife in local school districts and are contributing to their reluctance to implement the Act’s provisions.

For example, final regulations and guidance under Title I of the Act were not released until November 26, 2002, over 10 months after the law was enacted. As a result, schools were obliged to implement accountability, teacher training, school choice, and other reforms without adequate assistance from the Department. Since then, regulations and other policies have been released in multiple formats, causing needless confusion and inconsistencies in the field. We urge the Department to adopt a sound and consistent policy on the promulgation of rules and regulations, so that states, school districts, and schools will have ample planning time to comply with the Act.

To date, the technical assistance and information provided by the Department to states on implementation plans and funding applications under the Act have been inadequate. Since the initial deadline for submission of state consolidated applications, some states have struggled through technical revisions to their accountability plans and reconciled differences between their prior systems and those required by the Act. As they work through the process, many of these efforts have been hindered by the Department’s failure to disseminate valuable information on model accountability plans that could serve as templates for states struggling to put in place a strong and responsible plan.

More troubling, and further hindering state efforts to comply with the Act, is the fact that confusing messages have been sent about what revisions and changes to such plans are deemed acceptable or unacceptable by the Department, including revisions in adequate yearly progress, assessments, and the composition and size of subgroups under the law. This lack of guidance has sometimes led to unnecessary public confusion about school performance, with schools in some circumstances forced to meet two different sets of performance measures, with separate reports for student achievement.

It is important for the Department to adopt a formal process for facilitating amendments to state accountability plans. A uniform policy should be adopted for extending flexibility to states, and determining whether revisions are acceptable under the law. We also urge you to provide a more open exchange of information to the public, including the disclosure of details in implementation plans, applications, and policy letters.

Certain policy areas in the Act are also proving to be particularly challenging in the initial implementation phase. For example, Title III requires states to set standards and objectives for programs serving limited English proficient children, and Title I provides for the assessment of English language skills for such children. Many states have faced challenges in addressing these accountability elements. The law directs the Department of Education to provide technical assistance to states on these requirements. Yet little assistance, if any, has been provided. We urge you to finalize policy guidance in this area and provide adequate technical assistance.

Offering clear and timely guidance is also essential to facilitate the further development, improvement, and revision of implementation plans. The Department should work more actively with states to reconcile discrepancies in their accountability plans, consider fair revisions in such plans, and assist in the development of Title III plans under the law, if the reforms outlined in the Act are to be achieved.

It is regrettable that the Department has yet to acknowledge the challenges that teachers and school personnel are experiencing with implementation of the Act. There is much confusion at the local level about the Act, and we are disappointed in the lack of a plan to provide greater information and technical assistance to teachers and school personnel on implementation, and to strengthen communication with those primarily responsible for carrying out reforms in the classroom. The Department has efforts underway for outreach, but these efforts often neglect the detailed information on regulations and requirements that teachers need, and rely largely on brief overviews and materials that merely promote the law. Much can be accomplished to improve implementation by working actively with teachers and other school staff at the local level to enhance their understanding of the requirements of the law.

Key Policy Issues

We also have several serious concerns with specific instances of the Department’s implementation of the Act that undermine the letter of the law. These cases threaten to weaken the impact of reforms targeted to schools and students in greatest need. Among our concerns in this area are the following:

Weakened Protections Against High Dropout Rates. Graduation rates are a central component of accountability under the Act. Department regulations allow schools to make academic progress toward their achievement targets, even if dropout rates for at-risk students are increasing. Schools should not be allowed to claim academic progress and increasing test scores while ignoring high dropout rates.

Denial of Civil Rights Protections for Children. The Act expressly prohibits discrimination on the basis of race, color, religion, and sex (except as otherwise permitted under Title IX of the Education Amendments of 1972). However, the Department’s regulations permit organizations such as supplemental service providers to discriminate on the basis of religion in hiring persons for federally supported positions. The Department’s rules also allow supplemental service providers to discriminate in delivering services to children by refusing services to students with a disability or a non-English language background. The intent of federal civil rights laws continues to be to ensure that federally funded programs are free from discrimination. All children should have equal access to services under the Act, including publicly-funded tutoring assistance.

Guarantee of a “Highly-Qualified” Teacher in Every Classroom. The Act requires schools to ensure that all teachers are “highly qualified,” including obtaining state certification. Yet the rule established by the Department continues to permit uncertified teachers to be deemed “highly qualified.” Consolidated applications do not address the statutory requirement to ensure equity in highly qualified teachers for poor and minority students. Given the letter of the law, it is wrong to perpetuate the status quo by allowing the most disadvantaged students to be taught by teachers lacking proper training and credentials. The Department should do more to fulfill the promise of a highly qualified teacher in every classroom, including in small and rural schools.

Inadequate Assessments for Limited English Proficient Students. The Act requires the inclusion of these students in assessments in a valid and reliable manner, and requires them to be tested in content areas in a language most likely to yield accurate data, to the extent practicable. The Department has largely ignored these provisions on the appropriate assessment of such children under Title I. Nor has it provided guidance to states on developing native language assessments for these children or on appropriate accommodations. This lack of guidance threatens the ability of schools to reach their adequate yearly progress goals, because of inadequate measures of content knowledge for these children.

Poor Implementation of School Choice. The Department’s guidance and regulations on school choice provide no consideration of capacity in school districts with already over-crowded schools. Under the regulations, school districts are expected to build more schools and hire more teachers to comply with choice requirements, and must designate more than one option for students in schools “in need of improvement” to transfer. This interpretation is inconsistent with the law, and is counterproductive to improving student achievement.   The interpretation is incredibly troubling, because of the Administration’s opposition to federal assistance for school construction, and the lack of funding for class size reduction under the Act.

Confused Guidance on Adequate Yearly Progress Rules. Final rules and regulations on such progress and accountability have already been released to the states. But some states have been granted additional flexibility in defining subject and subgroup accountability for such progress, and other states have been granted flexibility in defining their population of limited English proficient children for accountability purposes. Clear rules should be established for these practices and communicated in a uniform and fair manner.

Recognizing "Highly Qualified" Veteran Teachers. The Act recognizes highly qualified veteran teachers who have a B.A. degree and pass an assessment of subject knowledge and teaching skill. However, the Department has not required states to implement the “alternative uniform and high state standard of evaluation” for recognizing veteran teachers as highly qualified. This concession has already led to confusion in the field in recognizing highly qualified teachers, and will lead to further problems in retaining such teachers in the nation’s schools.

Recognizing Paraprofessional Qualifications. The Actgives paraprofessionals the option to demonstrate that they are highly qualified by meeting strict quality standards and by demonstrating, through an assessment, their knowledge and ability to assist in the classroom. Unfortunately, many states and local school districts have not yet given paraprofessionals this option. By allowing this delay, the Department is making it difficult for paraprofessionals to demonstrate their qualifications by the deadline specified in the Act.

Inadequate Focus on Parent Involvement. The Act requires every school district to reserve at least one percent of its Title I funds to support programs and activities for parent involvement. New parental involvement provisions are embedded throughout the Act. States, school districts, and schools need the direction and leadership of the Department in implementing these key provisions. But rather then effectively implementing these provisions, the Department has chosen instead to focus largely on parental choice in supplemental services and on school choice. Parents need to be actively involved in many other aspects of their public schools and must have an integral role in their own children’s education to help them succeed. Without their active involvement and leadership, the Act will not be adequately implemented.

Scientifically-Based Research. The Act contains new requirements for initiatives and strategies to utilize scientifically-based research. It remains important for educational strategies to be rooted in science. However, we take strong issue with the Department’s use of such requirements to promote vouchers and other approaches that are based on ideology, not reliable data. States, school districts, and schools must be given the flexibility to follow the law’s requirements in this area.

Supplemental Services. The Act does not prohibit states from requiring supplemental service providers to meet the same high qualifications as teachers. Yet state plans that have sought to include this requirement in their accountability provisions have been rejected. It is important to ensure adequate training for supplemental service providers, who can provide individualized and valuable services to our neediest children, and states that seek to require high qualifications for such providers should be given fair consideration by the Department.

Funding

We remain profoundly disappointed that the Administration refuses to fulfill its commitment to provide states and local communities with the resources to raise achievement substantially for the neediest children. The continuing shortfall in funding is a primary obstacle to achieving the improvements in education sought under the law. We urge the Administration to keep its promise under the Act.

The pending Fiscal Year 2004 budget underfunds the Act by $7.5 billion, including underfunding the critical Title I program by over $6 billion. Almost 5 million children are left behind, even though they are fully capable of learning to high standards. The underfunding of the Act breaks the promise of better schools for all children and undermines support for the reforms we agreed upon in the Act to improve public education. We are disappointed that the President recently announced he would propose a Fiscal Year 2005 funding level for Title I that is only 65% of the amount agreed to in the Act. A teacher grading a test would give a 65% score a “D minus” grade.

We urge you to address these implementation challenges and strengthen the Department’s role in each of the areas we have mentioned. Equally important, we strongly urge you to support full funding of the No Child Left Behind Act in your budget submission for Fiscal Year 2005. We look forward to working with you to do all we can to achieve the full potential of the No Child Left Behind Act for all of America’s children. The nation deserves no less.

With respect and appreciation,

Sincerely,

Senator Edward M. Kennedy
Senator Christopher J. Dodd
Senator Tom Harkin
Senator Barbara A. Mikulski
Senator Jeff Bingaman
Senator Patty Murray
Senator Jack Reed
Senator John Edwards
Senator Hillary Rodham Clinton
Representative George Miller