Schools are preparing for their fourth year under the federal No Child Left Behind Act (NCLB) this fall even as a state-led grassroots rebellion rages against the education law. The revolt is expected to intensify in the 2005-2006 school year as stricter testing requirements and penalties take effect.

Several states have launched legislative and legal attacks against NCLB, or are openly defying provisions of the law, which calls for annual student testing in grades 3 to 8 and penalizes schools that fail to improve test scores in all racial and demographic groups.

Congress passed NCLB, President Bush’s signature education reform law, with strong bipartisan support in 2001 with the intent to raise academic achievement for all students and close the gaps in achievement that separate students of color and low-income students from their peers. However, states have complained since the law went into effect in 2002 that it is too costly and that federal standards usurp state and local control of schools.

Leading The Revolt

Leading the revolt has been the solidly Republican state of Utah, which handed Mr. Bush his largest margin of victory in the nation in the 2004 presidential election. After more than a year of debate, the GOP-dominated Legislature on April 19 authorized schools to ignore NCLB mandates that conflict with the state’s own testing regimen or that require state dollars to meet them.

In Mr. Bush’s own home state, also a Republican stronghold, the Texas commissioner of education has unilaterally decided to disregard NCLB requirements for testing students with learning disabilities. The Lone Star state – also home to U.S. Secretary of Education Margaret Spellings — already has been fined $444,282 of its $1.1 billion federal education allocation for missing a data-reporting deadline, and stands to face more costly sanctions if it continues to flout NCLB.

Georgia and Minnesota also have been fined for failing to meet requirements of the act.

According to Communities for Quality Education, a Washington, D.C.-based advocacy group tracking state actions on NCLB, 15 states (Arizona, Colorado, Connecticut, Georgia, Hawaii, Illinois, Louisiana, Maine, Minnesota, Nevada, New Mexico, North Dakota, Texas, Vermont and Wyoming) have considered legislation to “opt-out” of NCLB and forgo federal education funds, and four states (Maine, New Hampshire, Vermont and Wisconsin) considered bills that would prohibit the use of state money to comply with NCLB.

Long-threatened legal challenges to NCLB are materializing in at least five states. The National Education Association (NEA), the nation’s largest teacher union, and school districts in Michigan, Texas and Vermont sued the U.S. Department of Education April 20, alleging it has failed to fund NCLB adequately. Connecticut’s attorney general said he will soon file a similar lawsuit on behalf of the state Legislature, and Maine lawmakers in May passed a bill ordering their state attorney general to sue the federal government if the state determines NCLB is not fully funded.

Mandates Take Effect In 2006

It’s still early to measure the impact of NCLB mandates — which do not fully take effect until this fall — but large gains in student achievement on national standardized tests indicate that billions of dollars spent to increase testing and early reading and math intervention programs in the past decade have made a difference. Results released in July by the National Assessment of Educational Progress (NAEP), which tests students in grades 4, 8 and 12, showed that 9-year-olds are better readers than at any time in the past 30 years and that the achievement gap in math and reading scores between races has narrowed significantly in the past five years.

In an effort to pacify the states, the Bush administration in April 2005 offered greater flexibility on testing requirements for students with severe learning disabilities. But resistance to the overall law is expected to increase nonetheless as its requirements become harder to meet.

NCLB requires annual increases in the number of students who pass standardized tests in reading and math until all students are passing by 2014. Many states soon will face even higher benchmarks for how many students must pass. Most states opted to meet their goals in three-year increments, with the first jump in 2005. At least two states, Florida and Missouri, recently asked permission to scrap their three-year “stair-step” plan to avoid the higher standards and instead will join at least five other states (Arkansas, Delaware, Illinois, Maryland and North Dakota) that raise testing targets in smaller, annual increments.

In addition, 2005-2006 is the first school year that all states must have in place NCLB’s central requirement that students be tested in reading and math annually in grades 3 through 8 and once in grades 10 through 12. This year, more than 6,000 schools — about 13 percent of the number receiving federal funding – were rated “in need of improvement” because too many students failed the tests. The number of failing schools is down slightly from the previous year, but is expected to rise under stricter testing requirements.

Fifteen states are conducting or have finished studies on the cost of complying with NCLB, according to the National Conference of State Legislatures (NCSL). Studies by Ohio and Texas estimated that the price to state taxpayers of complying with NCLB could run as high as $1.5 billion and $1.2 billion, respectively, each year. NEA, the teacher’s union, contends that since the law’s enactment in 2002, there has been a $27 billion shortfall in what Congress should have provided to meet the law’s regulations. NCSL estimated a shortfall of $9.6 billion as of 2004. Twenty-five states are considering or have passed resolutions asking Congress to fully fund NCLB.

The conflict over NCLB is about federalism as well as funding. States have long considered education policy to be their exclusive province, especially because the federal government pays less than 8 percent of the states’ education costs. Their challenges against NCLB increasingly are focused on one paragraph in the 1,100-page act — Section 9572A — which prohibits the federal government from requiring states to pay any costs incurred by complying with the law.

Bush administration officials contend that NCLB is not an unfunded mandate and that states have received record increases in federal dollars for education in the past three years. Since 2001, Congress has increased education spending about $10 billion, or 2 percent of states’ overall education costs. Whether the states’ or the federal government’s competing cost claims about NCLB are correct is an ongoing dispute. Two commentaries published in Education Week examine different sides in the debate: “Two Very Different Questions,” by William J. Mathis, a superintendent of schools in Rutland, Vt., looks at the unfunded mandate arguments; “Money Has Not Been Left Behind,” by Paul E. Peterson and Martin R. West, both of Harvard University and the journal Education Next, argue the law is fully funded.

This “Backgrounder” is a work in progress and will be updated as warranted. —

Contact Kavan Peterson at kpeterson@stateline.org