The Pew Charitable Trusts

The Bush administration's decision to give states greater flexibility to comply with the No Child Left Behind Act was greeted with enthusiasm by state education officials meeting in Washington, D.C., this week. But the new concessions may not be enough to quell rebellions against the law brewing in several states.

U.S. Education Secretary Margaret Spellings announced new guidelines April 7 designed to make it easier for school districts to avoid federal sanctions under the 2002 law by tripling the number of learning-disabled students exempted from passing standardized tests. Previously, states were allowed to exempt 1 percent of their students from the testing requirements of NCLB. Under the new rules, some states will be allowed to offer alternative tests designed for those with disabilities to 3 percent of their students.

The announcement was intended to defuse a grass-roots rebellion against President Bush's education reform law and likely will offer significant relief to certain states that are having trouble meeting the law's achievement goals because of its rules on students with disabilities. NCLB threatens to penalize schools that fail to improve standardized test scores annually for all racial and demographic groups.

But Spellings reiterated that no concessions will be granted to states over other major requirements of the statute, such as in the areas of annual testing and teacher quality. And she did not address the funding gap that states claim is forcing them to spend billions of their own dollars to comply with the federal law. Even to qualify for increased flexibility in testing of learning-disabled students, Spellings said, individual states will have to demonstrate strong test results and a desire to improve them.
"We are willing to consider requests (from states), as long as the results for students are there and the principles of the law are followed," Spellings said.

That leaves the federal education department still at odds with states such as Utah and Connecticut, which have resisted changing their existing student testing systems to comply with new NCLB requirements. Over the past two years, about 30 state legislatures -- including many Republican strongholds -- have adopted resolutions criticizing the law as an under-funded federal mandate that undermines states' rights.

The stakes are highest in Utah, where lawmakers have scheduled a special session April 18 to take up legislation that calls for the state's own testing regimen to take precedence over NCLB testing mandates. Utah's Legislature postponed adopting the bill earlier this year to give state officials time to negotiate an agreement with the Bush administration.

If passed, the bill would order school officials to follow Utah's "proven system of student accountability" until the federal government fully funds NCLB or approves Utah's testing system.

"If our plan is approved by the (federal) Department of Education, the Legislature probably will not move forward with the special session," said Utah Superintendent of Education Patti Harrington, who was among two dozen state school chiefs in Washington to discuss the new guidelines. "If our plan has not been approved by then, or indeed has been denied, then the special session will move forward, the bill will pass and the governor will sign it," she predicted.

Connecticut raised the stakes this week by pledging to become the first state to file a lawsuit challenging the federal government's right to force the state to expand student testing without providing enough money to cover the cost. Connecticut's 20-year-old testing system for fourth-, sixth- and eighth-graders is regarded as among the most rigorous in the nation. Last month, Spellings rejected the state's request for a waiver of the law's requirement to expand testing to grades 3, 5 and 7.

"Nothing in all of today's verbiage corrects the key legal lapse" of NCLB, Connecticut Attorney General Richard Blumenthal said in written statement. "We will ask the court to enforce the law against unfunded mandates that clearly contradicts the specific, express terms of the No Child Left Behind law itself."

Connecticut Education Commissioner Betty J. Sternberg said "it was very unfortunate" that Spellings singled out Connecticut's request as non-negotiable when announcing the NCLB changes.

"I've respectfully requested that we meet together to discuss this in a conference room face-to-face," Sternberg, who did not attend the Washington meeting, said in a phone interview. "I'd much prefer meeting that way than in a courtroom."

Connecticut's lawsuit could have nationwide implications, with other states possibly joining or filing similar challenges. In Maine, for example, lawmakers this week introduced legislation that would order the state attorney general to file a similar lawsuit.

The newly announced guidelines for testing students with disabilities also fell short of mollifying Texas education officials, who have been flouting NCLB requirements by exempting nearly 10 percent of all Texas students from regular state tests since last year. School officials in Texas have argued that students who do not speak English should be exempted from taking the same test as their English-speaking peers.

Texas Education Commissioner Shirley Neeley said she hopes to work with federal officials to reach a compromise that takes into account the state's large population of English-language learners as well as students with disabilities.

"I heard her (Spellings) say that she understands that one size doesn't fit all and that we have to look at this on a state-by-state basis," Neeley said. "That willingness and the openness is just music to all of our ears. It's what everybody's been waiting to hear."