The 110th Congress is now
working on the eighth reauthorization of the Elementary
and Secondary Act of 1965 (ESEA), most recently
reauthorized as the No Child Left Behind Act of 2001 (NCLB).
The process will be challenging for, at least, two
reasons. First, Congress must reconcile the support for
the law's core principles with the extreme frustration
over its implementation and mechanics. Second, even if
the education committees complete bills by the fall of
2007, the matter will likely fall prey to Washington's
partisan election politics.
Indeed, the politics may
actually be more challenging than the law's substantive
debate (which may be a troubling sign of the times). So
this overview considers the political setting that will
determine the final reauthorization date. It then
highlights the emerging consensus on key reauthorization
issues.
The peculiar political background of NCLB is the key
to understandings its fate. Congress passed NCLB in late
2001 because conservative Republicans and liberal
Democrats rallied behind President Bush to grant the
suddenly popular President his top domestic agenda item
soon after 9/11. Both parties of the 107th Congress,
however, entered the agreement with hesitancy. The
conservative Republicans had to overcome their aversion
to an expanded federal role in education and the
Democrats agreed to let public education dollars flow to
for-profit tutoring services, to a results-based
accountability program and the infusion of more public
school choice. Both parties claimed victory in 2001, but
both now suffer from a something akin to buyer's
remorse.
Five years later, the political calculations are
considerably different because the new Democratic
control of Congress has both parties scrambling to
re-define themselves in preparation for the 2008
Congressional and Presidential elections. The Republican
leadership seeks to avenge its 2006 mid-term election
loss by re-establishing some of the party's pre-NCLB
orthodoxy including an emerging position on education
that appears to favor a return of the responsibility for
education reform back to states. In March 2007, for
example, House and Senate Republicans introduced the
“A-Plus” bills, which would allow states to opt out of
the current NCLB accountability regime. It was a clear
signal that this Republican class was not likely to
support the reauthorization of NCLB, as it now operates,
and they are not likely going to back their President as
they did in 2001.
The Democrats are also redefining themselves. Twelve
years is a long time to be in the wilderness, and the
new Democratic leadership is trying to avoid a
two-years-and-out scenario. As such, the Democratic
leadership is measuring the political consequence of
every decision leading up to the 2008 Congressional and
Presidential elections and they are focusing on their
campaign promises, achievable victories, and a
disciplined party voting record (which has not been a
Democratic trait in prior Congresses).
NCLB's reauthorization is a priority for the
Democrats, but not a “top priority” because it could
pose a challenge to the party's unity. Many Democrats,
particularly the freshmen, campaigned critically or
against the law and would like to see their states take
back the reigns of education accountability. Yet, this
conflicts with the intent of the law's original
architects and chairmen of the House and Senate
education committees, Representative George Miller
(D-CA) and Senator Edward Kennedy (D-MA). They are
working to maintain the law's central accountability
tenets while securing broad support for the many changes
now under consideration.
Complicating the matter, the intra-party realignment
is also generating strange new bedfellows. For example,
liberal Democrats and conservative Republicans now find
that they agree that NCLB's accountability provisions
need watering down or removal, and this only makes the
work more difficult for Miller and Kennedy. They are
under pressure to produce some bills by fall, but this
fluid re-alignment makes 2007 a very unattractive time
to champion the law's core accountability provisions and
bring it to a vote.
So when will the President sign a reauthorized law?
As of spring 2007, the Washington edu-intelligentsia was
predicting 2009, after the Presidential election. If
Congress, the logic goes, does not pass a
reauthorization in 2007, then the political rhetoric of
the 2008 Congressional and Presidential elections will
likely engulf the process. That, of course, would expose
the reauthorization to extensive national political
debate and transform the law into a creature of the 2008
election.
But do not be lulled into inactivity by the distant
date. As you read this article, the House and Senate
education committees are busy drafting the legislation
that will become law. They are basing their work, in
part, on Congressional hearings, experience with the law
and the many recommendations they have received this
spring. The legislative office of the Firm has been part
of this recommendation process and has reviewed many of
the submitted proposals. To get a better sense of what
is ahead, we are sorting many of the proposals into one
of the following three categories: what is likely to be
in the in final law, what is possible for final law and
what is unlikely to pass. So below you will find our
latest forecast on the reauthorization's emerging
trends.
Likely to See in Final
Law . . . .
Our analysis of recent proposals and expert opinions
suggest that some version of the following will be
included in the final rendition of reauthorization:
Overall Structure Remains the Same:
NCLB made a number of revolutionary changes to the
Elementary and Secondary Education Act (ESEA), including
introducing some concepts that are now fundamental: 1)
all students must be proficient by 2013-14; 2) analyzing
subgroup accountability; 3) all teachers of core
academic subjects must be “highly qualified,” and 4)
students in failing schools are entitled to school
choice and supplemental educational services (SES) from
organizations chosen by the parents. A reauthorized ESEA
will likely retain much of these revolutionary
requirements that were first introduced in NCLB. It is
an outstanding question whether a new law will still
mandate 100% student proficiency by 2013-14 as a legal
requirement, as opposed to an aspirational goal.
Growth Models: All major proposals to
date have endorsed the use of a “growth” model or
“improvement” model, as either a complement to or
replacement for the existing “status” model. The
technical details, however, remain the subject of
disagreement. The resolution is not yet clear, but
staffers are discussing the many options.
Focus on High Schools and College/ Workplace
Readiness: There is an emerging consensus that
the law will have a section to ensure that high schools
prepare students for college and the workplace. This
will likely include programs for the development of high
school content standards and assessments that measures
college and workplace readiness.
Increased Funding Authorization Levels:
The perpetual debate over appropriate funding is
…perpetual. The Democratic leadership has identified
funding as a priority issue, so it is likely that the
authorization levels for Title I will likely increase as
part of reauthorization. Yet, these increases only
become a reality through the annual appropriations
process and that subjects the matter to a broader
spectrum of competing interest, such as the costs of the
war in Iraq, expanding Medicare and Medicaid
commitments, and the increasing size of the deficit and
national debt.
Possibilities for Final
Law. . .
A number of key issues are certain to be the subject
of intense debate, with the ultimate outcome less easy
to predict, including:
National Standards: In response to
concerns about widely varying definitions of
proficiency, a consensus is emerging in support of some
form of national standards, but how they are drafted and
implemented remains an abstract discussion at this time.
Students with Disabilities (SWDs):
Assessment and Accountability: All major proposals
recognize the challenges to properly testing SWDs and
many proposals would give the individual education
program teams more authority to determine proper
standards and assessments. This will be critical
throughout the reauthorization, but the emerging
consensus is not yet clear.
Limited English Proficient Students (LEP):
Assessment and Accountability: The issues surrounding
the testing of LEP students have challenged
administrators nearly as much as testing SWDs. The
current law frames the issues around how long an LEP
student has attended US schools, giving a reading test
exemption for an LEP student's first year in the
country. Numerous proposals have recommended expanding
the current testing exemption beyond one year. There is
also support for extending the period for using
“residual inclusion,” which currently allows the test
scores of former LEP students to be included in the LEP
subgroup for adequate yearly progress (AYP) purposes for
two AYP determination cycles. Like SWD issues, this will
be a critical to the reauthorization.
Targeted Interventions for School Improvement
Determinations: There is an emerging census to
target school interventions based on the nature and
scope of the school's failure to make AYP and to target
that intervention to subgroups that triggered the
status. There is also substantial support for districts
being able to provide SES in the first year of school
improvement, although proposals differ as to whether SES
would be offered in addition to or in lieu of school
choice.
Highly Qualified Teachers (HQT): The
emerging consensus is for the reauthorized law to retain
the current HQT structure but grant more exceptions to
its credentialing requirements, to grant more
flexibility for multiple subject teachers and teachers
who instruct SWDs, to design incentives that would
attract teachers into high need subjects and schools,
and to provide better professional development.
Unlikely to Pass . . . .
In this political climate, it is clear that certain
proposals will not advance, notably:
Private School Vouchers: If vouchers
were not politically viable when Republicans controlled
the White House and both chambers of Congress back in
2001, it is a forgone conclusion that not much political
capital will be spent trying to push vouchers through
the 110th Congress.
To be sure, the substantive revisions of the
reauthorization will keep Congress busy this summer and
the politics of it all will make it entertaining for
those of us who monitor Congress. Please feel free to
contact us to stay informed on the latest developments.
The Elementary and Secondary Act of 1965 has been
reauthorized in 1974, 1978, 1981 (Consolidation Act),
1984, 1988 (Hawkins Stafford Act), 1994 (Improving
America's Schools Act) and in 2001 (No Child Left Behind
Act). There have also been numerous amendments that
effect ESEA since 1965.
Chester Finn and Frederick Hess, “On
Leaving No Child Behind,” The Public Interest, No. 157
(Fall 2004).
Andrew Rotherham, “How Bush Stole Education,” Blueprint
Magazine, March 25, 2002.
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