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NCLB Outrages

No Child Left Behind: The Dangers of Centralized Education Policy

Ohanian Comment: There is much to disagree with in this Libertarian perspective. But the author provides plenty for us to think about, and even some to agree with too. Reading this article helps us clarify where we stand. And there are some very quotable lines.

Executive Summary

The No Child Left Behind Act (NCLB), which the Bush administration claims as its proudest achievement in domestic policy, directly contradicts the principles of an “ownership society,” which the administration is promoting in areas such as Social Security reform. The administration recognizes that the educational policies of the last four decades, a period of almost uninterrupted centralization, have failed, but its remedy is yet more centralization.

The NCLB statute is a reform strategy at war with itself. It virtually guarantees massive evasion of its own intent, ordering state education agencies to do things that they mostly don’t want to do. Washington will be forced either to allow the states great leeway in how they implement NCLB or to make NCLB more detailed, prescriptive, and top-heavy. If Washington chooses the former, the statute might as well not exist; if the latter, federal policymakers will increasingly resemble Soviet central planners trying to improve economic performance by micromanaging decisions from Moscow. NCLB may end up giving us the worst possible scenario: unconstitutional consolidation of power in Washington over the schools, with that power being used to promote mediocrity rather than excellence.

It is too early to know for certain which scenario will prevail, but it is already clear that state and local education officials are skillfully protecting their interests in ways that undermine the intent of NCLB. Especially telling has been their widespread dishonest reporting in at least four areas: graduation rates, school violence, qualified teachers, and proficiency tests. As it becomes increasingly clear that the states can satisfy the requirements of NCLB by lowering their standards, there will likely be a “race to the bottom.”

Instead of using centralized decrees to turn mediocre institutions into excellent ones, as they have been trying but failing to do for the last several decades, the state and federal governments should be empowering individual families to “vote with their feet” by transferring to the schools of their own choice.

The key locus for such revolutionary reforms is the states. The best contribution the national government can make to educational improvement is to avoid educational policymaking and allow states to experiment with school choice programs.

Lawrence A. Uzzell is an independent researcher and former staff member of the U.S. Department of Education and the U.S. House and Senate committees on education.

Introduction
In domestic policy, the No Child Left
Behind (NCLB) education act is the Bush
administration’s top claim to visionary leadership.

The president and his aides have compared
NCLB to landmark programs such as the
Social Security Act or the Homestead Act. In his
acceptance speech at the 2004 Republican convention,
President Bush stated that NCLB is
“the most important federal education reform
in history.”1 Both during and since the 2004
election campaign, President Bush’s speeches
have depicted the 2002 act as an unqualified
success; even before his second inauguration,
the president proposed to extend its provisions
from elementary schools to high schools.

Especially striking is the boast that Bush
has increased federal spending on education
faster than any president since Lyndon
Johnson.2 That is a reversal as profound as the
Clinton administration’s embrace of sweeping
welfare reform in 1996; in both cases the party
in power accepted ideas long associated with
its opponents. The Republican reversal is the
more stunning of the two because most members
of the president’s party on Capitol Hill
changed course with him. During the Republican
Party’s rise to majority status from the
1960s to the 1990s, by contrast, it usually
opposed centralized federal programs in education
as in other areas of governance. As
recently as 1996, the party’s platform pledged
to abolish the U.S. Department of Education.3

What ultimately matters is NCLB’s success
not as a one-shot campaign tactic but as a longterm
strategy for bringing genuine reform to
the country’s dysfunctional public schools.
With party loyalty keeping most congressional
Republicans from criticizing the statute, its
skeptics currently find themselves marginalized
in Washington. But in the long run NCLB
should and will be judged by its actual results.

Dangers of Centralization
No Child Left Behind was enacted in the
form of a reauthorization of the 1965 Elementary
and Secondary Education Act, one of the
centerpieces of President Lyndon Johnson’s
Great Society. Once it takes full effect, the
statute will require states that receive ESEA subsidies
annually to test third to eighth grade students
in reading and mathematics. By 2014 the
states must bring all of their students up to the
“proficient” level on those tests. In the meantime
the states must demonstrate “adequate
yearly progress” (AYP) toward the goal of 100
percent proficiency—including progress toward
eliminating achievement disparities between
ethnic subgroups. Schools that receive subsidies
under the ESEA Title I program for disadvantaged
children and that repeatedly fall short
of their AYP targets are subject to an escalating
series of corrective measures: allowing their students
to transfer to other public schools after
two years,4 providing supplementary services
such as private tutoring after three years, and
possibly becoming subject to mandatory
restructuring thereafter.

NCLB’s success will depend on whether it
is possible to produce excellent educational
performance through centralization. Its
advocates are in a self-contradictory position.
They recognize that the educational policies
of the last four decades, a period of almost
uninterrupted centralization, have failed, but
their remedy for that failure is yet more centralization.

While invoking the principles of
an “ownership society” on issues such as
Social Security reform, they are pursuing
almost the exact opposite model in schools.
In a period of growing social mobility and
individual autonomy, they are promoting a
top-down, Great Society model of reform—
transferring power from individual parents,
teachers, and principals to distant bureaucracies
such as state education agencies.

Ironically, the Bush administration has
made a key exception to its “ownership society”
precisely in the area of social policy that
by its very nature is least susceptible to centralization.

Education is inherently personal
and inherently value laden. The key relationships
in schools are those between individual
teachers and individual students: If the
teachers are not committed and highly moti-
vated, no centralized rule books or formulas
are going to inspire peak performance from
their students. To use social science jargon,
schools are “loosely coupled systems”; therefore,
decrees from centralized administrators
have little power to boost school performance
but enormous power to impede
progress. Indeed, before the mid–20th century
such administrators were either nonexistent
or mostly irrelevant; key decisions were
made at the level of the individual school by
principals and teachers.5

Moreover, schooling inescapably involves
judgments about truth and virtue, about what
kind of person a youngster should aspire to be.
In an increasingly pluralistic society, Americans
are inevitably going to disagree with each other
about those judgments. Which historical figures
should children be encouraged to revere as
heroes? What should they be taught about
ancient belief systems such as Christianity and
Islam—and about modern ideologies such as
feminism and environmentalism? Should “traditional
values” such as piety, chastity, and
asceticism be celebrated, ridiculed, or simply
ignored? Americans in the 21st century have no
more chance of reaching consensus on those
questions than of agreeing on what church (if
any) we should all attend. That is why we keep
the state out of controlling churches, just as we
keep it out of other value-forming institutions
such as publishing and journalism. The more
we entrust such decisions to centralized state
agencies, the more conflicts we foment—conflicts
that in a truly free society would be unnecessary.

As legal scholar Stephen Arons observed
in 1997: “One civic group after another
attempts to impose its vision of good education,
and all join in a struggle over the one true
morality to be adopted by the public schools.
The outcomes of the conflicts over curriculum,
texts, tests, and teachers seem less and less like
constructive compromises that knit communities
together; more and more they resemble
blood feuds, ideological wars, episodes of selfishness
wrapped in the rhetoric of rectitude.”6
Zero-sum “culture wars” for control of
coercive state monopolies thus make enemies
of people who could otherwise be
friends. Perhaps in some bygone era each
local public school reflected a local consensus.
But in today’s ultra-mobile society, in
which communities are less and less defined
by geography, the only way to keep the culture
wars from engulfing the schools is a
comprehensive strategy of parental choice.
The key to rescuing our children from the
bureaucratized government schools is radical
decentralization: tuition tax credits, tax
deductions, and vouchers. Unfortunately,
NCLB is taking us in precisely the opposite
direction.

Granted, NCLB does not explicitly call for
national curricula. The statute mandates
standards for testing, not for curricula, and it
leaves the specific content and design of the
tests up to the states. But in the long run the
tests will, at least to some degree, drive the
curricula, and that will loom even larger if
NCLB is extended to high school programs
as well as to elementary-level reading and
math. The statute is already promoting centralization
within each state, to the detriment
of pluralism and local control. It could
become a force for national centralization as
well if future administrations should exercise
to its full potential their power to deny federal
funding to states whose testing programs
are deemed inadequate.

So far, the Bush administration has been
cautious in exercising that power. During last
year’s presidential election campaign, the
administration wanted to avoid headlines
about conflicts with state education agencies;
it tried to perpetuate as best it could the congenial
atmosphere of the bipartisan signing
ceremony when NCLB became law in January
2002.7 Nevertheless, the states are restive.
Many are complaining that NCLB is excessively
intrusive; dozens of state legislatures have
passed resolutions criticizing the statute.8
Such complaints are not necessarily unjustified.
Any statute as long and complicated as
NCLB inevitably requires that state and local
school officials spend thousands of manhours
filling out federal forms and complying with
procedural requirements from Washington—
even if that red tape produces little or nothing
in the way of genuine academic improvement.

It would be not at all surprising if NCLB
turned out to be both meddlesome and impotent,
as have many previous federal programs.
The Bush administration, and future
administrations, will now face a dilemma.
The NCLB statute virtually guarantees massive
evasion of its own intent: It orders the
state education agencies to do things that
many of them don’t want to do, such as institute
detailed, rigorous testing programs that
enable the public to distinguish successful
from unsuccessful schools, and it gives those
agencies broad discretion about just how to
do those things. The U.S. Department of
Education has little role in creating content
standards and assessments under NCLB; it
only decides whether to approve those created
by the states. But as the states devise various
tactics for evading both the letter and the
spirit of the law, lawmakers will be forced
either to let them get away with those tactics
or to continuously amend NCLB’s statutory
text (already about 1,100 pages long) and
associated regulations in order to keep up
with the states’ ever more inventive evasions.
If policymakers choose the former course,
NCLB might as well not exist; it will just be
one more drain on taxpayers, like scores of
previous education programs, and one more
source of special-interest group subsidy—in
this case to the testing companies. But if
Washington policymakers instead choose to
amend the statute, they will end up making it
steadily more detailed, prescriptive, and topheavy.
Washington’s education officials will
more and more resemble Soviet central planners
trying to improve economic performance
by micromanaging decisions from
Moscow. Unlike Soviet bureaucrats, however,
the federal government lacks a captive labor
force; the more centralized the system
becomes, the more likely those teachers and
potential teachers with the greatest creativity
and leadership ability will be to seek careers
elsewhere rather than accept being mere
pawns of the federal government. As a strategy
for promoting “excellence,” centralization
will be inherently self-defeating.
Thus, NCLB is a reform strategy at war
with itself: It can work only if federal officials
ride tight herd on their state counterparts,
overriding them whenever they sacrifice
reform to special-interest pressures. The
authors of NCLB have already said that they
will do no such thing, rightly invoking principles
such as states’ rights and the absence
of a constitutional warrant for federal control
of local schools. But if they were serious
about those principles, they would never
have enacted NCLB to begin with.9 On the
other hand, if they decide to use NCLB as a
tool to muscle through fundamental reforms
against the will of the entrenched special
interests, they will find that they have to discard
whatever remains of their constitutional
scruples. They or their successors may even
conclude that that is the best possible outcome:
If the Constitution and the principles
it embodies stand in the way of urgently
needed reforms, then the devil take the
Constitution. Many previous would-be
reformers have made that judgment, from
the advocates of centralized economic planning
who created the short-lived National
Recovery Administration in the 1930s to the
Supreme Court in its 1972 ban (also shortlived)
on all forms of capital punishment.
Future historians, then, may look back on
NCLB as simply one more phase in the gradual
building of a national ministry of education—
a ministry explicitly responsible not
only for testing but for curriculum content
and even for the administration of schools.
Parents with complaints about their children’s
textbooks or teachers would have to
take those complaints, not to their local
school board, but to Washington. That scenario
may seem far-fetched: There is no clear
evidence that the proponents of NCLB consciously
intend to create a national curriculum
or a national, European-style ministry of
education. But few members of Congress
who voted for the 1965 Elementary and
Secondary Education Act, which was only a
few dozen pages long, consciously intended
to start down a path leading to ever more
detailed federal controls and culminating in
the 1,100-page NCLB. Once Washington sets
up such regulatory and spending machines,
they tend to acquire a life and logic of their
own. Moreover, one should consider that it
took only seven years from the congressional
elections of 1994 for many of that year’s
“Republican revolutionaries” to reverse
course and vote for the most centralizing
education bill in American history. It seems
not at all implausible that Congress may be
willing to enact even more sweeping centralization
within the next decade—especially if
an increasingly comfortable Republican
majority grows ever more accustomed to
bloating the Department of Education’s
budget with “pork-barrel” earmarks for its
political allies.10

Setting aside its difficulties from the
standpoint of constitutionalism and the rule
of law, would such hypercentralization actually
bring genuine reform? Optimists might
suggest that it could bring us back to the
educational standards of 1901, when the
College Entrance Examination Board published
a list of specific literary classics that it
recommended that every would-be college
freshman should have read before matriculating.
11 The firm, exacting standards of
those educators stand in striking contrast to
the curricular relativism of the late 20th century,
with its faddish lessons in popular culture.
If education means requiring a youngster
to learn things that he is unlikely to learn
if left unsupervised, then perhaps centralized
coercion is a good thing.

What that argument ignores is the crucial
fact that in America, unlike much of Europe
and Asia, curricular relativism and fragmentation
have grown hand in hand with the
growth of centralized power over education
policy in both Washington and the state capitals.
The people who control the key institutions
in this country’s government school
establishment—the teachers’ unions, the
teacher-training institutions, the state education
agencies, the career staff of the federal
education colossus—are not Victorian-style
elitists seeking to mold the masses according
to lofty standards of classical learning. Quite
the opposite. In today’s America, the masses
are more elitist (in the desirable sense of
demanding serious academic standards)
than is the educational establishment with
its focus on “self-esteem.” When given a free
hand, American working-class parents make
sounder educational choices than the establishment
tries to dictate to them. Consider,
for example, the nearly total absence of
destructive fads such as bilingual education
in private schools, even when those schools
have large minority enrollments.12

Judging from the experience of the last
four decades, NCLB may end up giving us
the worst possible scenario: unconstitutional
consolidation in Washington of power over
the schools, with that power being used to
further mediocrity rather than excellence.
Experience shows that centralized government
agencies are especially prone to capture
by ideological factions that want to shield
children from unwelcome facts and opinions.
In a 2001 study for the Cato Institute,
Sheldon Richman cited the case of the proposed
national history standards developed
in the early 1990s by the National Center for
History in the Schools at the University of
California at Los Angeles under a grant from
the U.S. Department of Education and the
National Endowment for the Humanities.
According to Richman, those draft standards
“set off a firestorm of controversy led by
Lynne V. Cheney, who had chaired the NEH
when the National Center was commissioned
to write the standards. . . . Cheney condemned
the standards as an exercise that put
Western-bashing political correctness ahead
of good history. She feared that an ‘official
knowledge’ would be adopted, ‘with the
result that much that is significant in our
past will begin to disappear from our
schools.’ The irony is that, until the standards
were released, she favored in principle
the government’s adoption of an ‘official
knowledge.’”13

Richman rightly concluded that “we do
not face a choice between government standards
for education and no standards at all,
no more than we face a choice between gov-
ernment standards for computers and no
standards at all.”14 Those who call for educational
statism in the name of “standards”
seem blind to the vital distinction between
standards set by private institutions and
standards set by government.

Covering Up Problems
More than any previous federal education
law, NCLB is dependent on quantitative data
about test scores, graduation rates, violence in
schools, and teachers’ knowledge of the subjects
they teach. In practice, that means it is
dependent on state and local school officials’
telling the truth about matters about which
fudging the truth is both rewarding and easy.
As education researchers Chester Finn of the
Thomas B. Fordham Institute and Frederick
Hess of the American Enterprise Institute
recently observed, the statute requires those
officials “to execute policies that clash with
their own financial and reputational interests.”
15 As has been the case since the era of
education reform began two decades ago,
state and local officials have skillfully protected
those interests. Especially telling has been
their widespread dishonest reporting in at
least four areas: graduation rates, school violence,
qualified teachers, and proficiency tests.

Graduation Rates
To assess the seriousness of both the state
education agencies and the U.S. Department
of Education, a good place to begin is the
states’ implementation of NCLB’s provisions
on reporting high school graduation rates.
Though counting the number of students
who fail to finish school on time is trickier
than many laymen realize, in principle this
task should be less subject to honest disagreement
than that of measuring academic
“proficiency.” Moreover, NCLB does not
mandate a nationwide goal for graduation
rates, or ambitious year-by-year targets for
increasing those rates, unlike its goals of universal
proficiency in reading and math. The
statute does not threaten penalties for
schools with low graduation rates; it merely
requires that those rates be reported. Thus if
the states are reporting those rates in ways
that are manifestly inaccurate, we are entitled
to be skeptical about their reports on matters
that are inherently less precise and more subject
to high-stakes consequences.

Sadly, dishonest reporting about graduation
rates turns out to be widespread. For
example, in late 2003 California’s state department
of education formally announced a
graduation rate of 86.9 percent—even while
the state’s own specialists were admitting
unofficially that the true figure was about 70
percent. Education researchers Jay Greene and
Greg Forster of the Manhattan Institute
found similar “phony numbers” in Indiana,
Texas, and other states; they accused the U.S.
Department of Education of “allowing states
to use inflated figures to satisfy the [NCLB]
requirements rather than demanding honest
statistics and real improvements.” The only
thing unusual about California was that
before passage of NCLB it had been “one of
the few honest exceptions” that reported its
graduation rates truthfully, but “now it has
the worst of both worlds: Its graduation rate is
still atrociously low, but it no longer officially
admits that it has a problem.”16

One method of making schools look
more successful than they are is to look only
at drop-out figures, not graduation figures.
This method starts with the number of students
who entered ninth grade, then subtracts
only those individual students who are
specifically, unmistakably known to have
dropped out over the succeeding four years.
Students transferring to another school are
not counted as dropouts, even if they later
fail to graduate. In Greene and Forster’s view,
“This method is accurate when it’s carried
out with precision, but in practice it has produced
shoddy numbers because keeping
track of every student who leaves school is a
logistical nightmare.” They prefer a method
based on enrollment data: comparing the
number of students who began ninth grade
with the number who graduate four years
later, making adjustments for local popula-
tion changes such as mass departures caused
by economic downturns.17

In a detailed study published in 2001 and
revised in 2002, Greene concluded that the
“estimated national public school graduation
rate in 1998 was 71 percent, slightly
lower than the 74 percent originally reported.”
That conclusion stood in stark contrast
with the figures published by the National
Center of Education Statistics, which had
found a “high school completion rate” of 86
percent.18 Thus, if Greene was right, the federal
number crunchers were missing about
half of the students who fail to graduate.
In December 2003 the Education Trust,
which promotes high academic standards for
disadvantaged students, published a study
essentially agreeing with Greene’s methods—
and using them to evaluate both the federal
and the state governments’ implementation
of NCLB. That study focused on the detailed
reports that the states were required to begin
submitting on their graduation rates in
September 2003—nearly two years after the
statute had been passed. Under NCLB the
states were supposed to calculate graduation
rates according to the percentage of students
earning regular diplomas—not alternative credentials
such as GEDs—within the standard
number of years. The reports were supposed
to include the graduation rates of specific subgroups,
such as children with limited proficiency
in English, as well as those from various
ethnic groups. But the Education Trust found
that many of the states failed to comply with
those requirements: “Some states didn’t
report any data at all, and many didn’t report
it disaggregated by student group. Several
cited an inability to collect this data. . . .

Others
have reported data that differs greatly from
the minimum graduation rate calculation
required by NCLB. Instead, their calculation
methods portray a rosier picture in their states
than external sources. . . .” Such foot-dragging,
in the Education Trust’s view, was “inexcusable”
in light of the fact that states had routinely
been reporting enrollment data to the
federal department for many years before
NCLB.19

Those states that did provide data
claimed graduation rates ranging from a
high of 97 percent in South Dakota to a low
of 63.7 percent in Nevada, with most states
reporting rates significantly higher than
Greene’s independent calculation. Some
states showed huge differences: For example,
North Carolina reported a graduation rate of
92.4 percent where Greene had estimated 63
percent. On investigation it turned out that
North Carolina’s reported figures “were not
based on the percentage of students who
entered in the ninth grade and received a
degree four years later, but on the percentage
of diploma recipients who got their diploma
in four years or less. In other words, students
who drop out of high school are simply
excluded from the calculations altogether.
This means that, theoretically, if only 50 percent
of students who enter ninth grade in
North Carolina were to eventually obtain a
high school diploma, but every one of those
50 percent did so in four years or less, then
North Carolina would report a ‘graduation
rate’ of 100 percent.”20

The U.S. Department of Education has
been less than rigorous in monitoring compliance
with NCLB’s requirements. The
Education Trust faulted the department for
failing to provide enforcement of the law’s
provisions on data reporting, which “thus far
states have flouted . . . failing to report data
or reporting misleading data with no consequence.

The Department’s inaction is sending
a strong message about priorities, one
that is at odds with the priorities expressed in
the law. . . . [Its] silence on the noncompliant
reporting practices of states like North
Carolina has been deafening.”21
The Washington, DC–based Urban Institute
found similar flaws. The institute’s Christopher
B. Swanson concluded that “a mere four states
took the high road of requiring both a firm
floor for graduation rates and also disaggregating
results for subgroups when determining
adequate yearly progress.”22
A year after the detailed study by the
Education Trust, the situation had not
improved. The Center on Education Policy, a
research and advocacy group committed to
public schools, reported in a study published
in the autumn of 2004 that the federal
department was actually allowing states to
lower their targets for high school graduation
rates. “In Maryland, schools and subgroups
can either meet the graduation rate target of
81 percent in 2004 or show an improvement
over the previous year of 1/10th of 1 percent.
Similarly, Pennsylvania schools and subgroups
can either meet an 80 percent target
for graduation or show progress toward that
target.”23

If school districts and individual schools
can get away with fudging their graduation
rates, they will find it all too easy to report
misleadingly high test score averages. When a
school’s test scores go up, it is vital to know
whether that increase represents real
improvement or merely an increase in the
number of dropouts among youngsters who
would have performed poorly if they had
taken the tests and would thus have dragged
down the schoolwide average. Detailed, accurate
reports of graduation rates are thus crucial
to NCLB’s overall strategy. By failing to
insist on them, Washington policymakers are
obeying the U.S. Constitution but violating
the clear intent of the NCLB statute and
undermining whatever chance that statute
might have of succeeding on its own terms.

School Violence
With a handful of exceptions, states are not
providing honest reports about which government
schools are unsafe for students. NCLB
ostensibly requires the state education agencies
to identify those schools that are “persistently
dangerous.” It also requires the states to
give students who attend such schools the
right to transfer to other government schools
within the same school district. But the
statute never defines the term “persistently
dangerous” (just as it never defines the even
more crucial term “proficiency”). Instead,
NCLB’s Section 9532 leaves that definition up
to the states, “in consultation with a representative
sample of local educational agencies.”
The states need not even consult with the
police—or with any other outside experts.
Thus the NCLB statute puts the federal officials
charged with implementing it into a contradictory
position. Either they insist on forcing
the states to tell uncomfortable truths and
do uncomfortable things—in which case they
are violating the Constitution, which leaves
education policy to the states—or they let the
states get away with perpetuating the status
quo of mediocrity and deceit, in which case
NCLB might as well not exist.

The NCLB law invites self-serving duplicity,
and state school officials are accepting
that invitation. According to their NCLB
reports, only three states have any persistently
dangerous schools at all. One of the three
is South Dakota, which admits to having two
such schools, although South Dakota does
not stand high on any objective observer’s list
of places with the most severe crime or juvenile
delinquency. The other two states are
Pennsylvania, which acknowledges 14 persistently
dangerous schools, and New Jersey,
which admits to having 10 such schools.24
State school officials elsewhere insist that
even the most dysfunctional, crime-ridden
parts of cities such as Cleveland, Detroit, Los
Angeles, New York, and Washington do not
have even one unsafe school. Whether or not
state bureaucrats actually believe that claim,
so far their federal counterparts have not
publicly challenged it.

Some states avoid telling the truth by
counting students charged with violent incidents
as a percentage of a school’s total student
body and setting the percentage required
for the persistently dangerous category so
high that even the scariest schools will pass
muster. Colorado, for example, adopted rules
in 2003 requiring that 45 violent incidents
must be officially reported for each of two
consecutive years in a school with fewer than
299 students, or 360 incidents in one with
2,100 students. The new rules excluded fights
not leading to serious bodily injuries.25 “The
key word here is persistent, which means a
school is dangerous on a daily basis,” said an
official of the state education department.26
By that standard Colorado is easily able to
announce that it does not have any persistently
dangerous schools.

In 2003 six states admitted to a total of 52
such schools. But within months, two of those
states, Nevada and Texas, claimed to have
found that they really had no persistently dangerous
schools after reviewing their data.27
That reclassification reduced the official
nationwide total of unsafe schools to 38; in
2004, as noted above, the total dropped further
to 26.

The NCLB reports have thus been growing
more and more detached from reality,
and states are learning from experience that
they face no adverse consequences for hiding
the truth. Though NCLB cannot work even
on its own terms unless federal lawmakers
impose penalties for dishonest reporting,
they lack the will to do so. They also lack constitutional
authority to do so—but as noted
earlier, if Washington took the Constitution
and its principles of decentralized government
seriously, NCLB would not exist.

Qualified Teachers
Everyone agrees that raising graduation
rates and reducing violence in schools would
be good, even if those improvements are difficult
to measure. More controversial is
NCLB’s goal of ensuring that all schoolchildren
have “highly qualified” teachers. In both
spirit and letter, the statute challenges longstanding
assumptions about what a teacher
needs to know in order to be “qualified”—
assumptions deeply entrenched in powerful
institutions such as teachers’ unions, schools
of education, and state education agencies.

How much emphasis should teacher-training
and certification programs place on “how
to teach”—as in the courses in pedagogy
offered to education majors—and how much
on “what to teach”—specific academic subjects
such as biology or American history? NCLB
reflects the view that the current system gives
too much weight to the former and too little
to the latter.28 It requires that by 2006 all
teachers demonstrate competence in the subjects
they teach. A teacher can meet that
requirement either by having a bachelor’s
degree in the relevant subject or by meeting
some other standard set by the state and
accepted by the U.S. Department of Education.

For example, states might require a rigorous,
advanced test in content knowledge of
the subject. But for teachers who are already
on the job, as distinct from new hires, NCLB
gives the states great leeway—and many states
have taken advantage of that leeway to adopt
standards so lax as to be meaningless.
For example, the standards issued last year
by the Maine Department of Education allow
teachers to substitute a huge range of supposed
credentials for passing an objective test
or university coursework equivalent to a
major. They can earn “points” for attending a
conference or workshop, serving as a mentor
teacher or after-school tutor, being a “participant
in a state or national stakeholders group”
or a member of a professional organization—
or even just for writing a grant proposal.29 The
Florida Department of Education grants 30
points (of 100 needed) simply for satisfactory
performance in a single in-class evaluation by
a supervisor—even though those evaluations
were originally intended for purposes far
broader than measuring content knowledge.
In open-ended fashion, Florida also awards
points for “other appropriate related activity
as determined by the school district.”30

In December the National Council on
Teacher Quality, an independent research
center that advocates more rigorous subject
matter training for teachers, published a
state-by-state study of the response to
NCLB’s teacher quality provisions. NCTQ
found that “even with the 2006 deadline
looming, only a handful of states appear willing
to comply with the spirit of that portion
of the law that seeks to correct the long-tolerated,
widespread and inadequate preparation
of American teachers in their subject
areas. Some states are indifferent or even
antagonistic about the prospect of declaring
significant numbers of their active teachers
unqualified.” The think tank’s president
Kate Walsh concluded: “In the short term,
the prospects are dim for making genuine
strides in improving teacher quality. The
law’s clarity on the academic preparation
required of new teachers bodes a more
promising future, but where veteran teachers
are concerned the law is doomed to disappoint,
save in a minority of states.”31

Only one state, Colorado, has earned an
“A” rating from NCTQ for demanding that all
teachers either provide proof of academic content
courses nearly equivalent to an undergraduate
major or passing a test of subject
matter knowledge. Oregon has a similar
requirement for new teachers only. Four other
states allow an academic minor rather than
the major favored by NCLB. The remaining
states fall far short of the NCLB standard.
Most states are allowing teachers already
on the job to bypass testing of content
knowledge by granting them points for an
absurdly wide array of “professional development”
activities that may be only tenuously
related to real competence, such as attendance
at short-term workshops or state conventions,
participation on bureaucratic committees,
heading school clubs, or taking
courses outside the subjects they are now
teaching. The NCTQ study invoked the
image of “teachers scrambling up the stairs
and into their attics to dig out antiquated
proof” of points earned decades ago.

During the nine years that remain before
NCLB’s target of 100 percent proficiency by
2014, the majority of the country’s most
influential teachers will be those who are
already on the job. Even as they are joined by
young recruits who (one hopes) will have
stronger qualifications, it is the senior teachers
who will hold most decisionmaking positions
such as departmental chairs; it is on
them that NCLB’s success will largely
depend. At the current rate of progress, it
seems unlikely that those teachers will be
much closer to being “highly qualified” in
2014 than they are today.

All the senior teachers, both qualified and
unqualified, will retire eventually. By then, let
us hope, most schools will have adopted genuinely
demanding standards for hiring their
successors. But NCLB leaves plenty of room
to continue avoiding such standards. The
states can adopt tests of content knowledge
as easy as they choose—and they will continue
to be under pressure from teachers’
unions, schools of education, and other
interest groups to avoid letting those tests
become serious filters. According to the most
recent available nationwide data, most of the
states that test for content knowledge “have
set the minimum passing score—or cut
score—so low as to screen out only the very
lowest performing individuals.”32

Some states have responded to NCLB by
actually lowering their testing requirements
for teachers. Since the law’s enactment,
Pennsylvania has dropped a test after finding
that too many middle school teachers failed
it. Maryland, New Hampshire, and Virginia
have made their basic skills tests for teachers
easier to pass.33 Florida, Georgia, Illinois,
Missouri, Nevada, and West Virginia have
lowered their requirements for teachers
trained out of state.34

Thus, on teacher training we are seeing a
clear test: Will the federal government use
NCLB to inspire, coax, or pressure state and
local school officials to adopt reforms that
are contrary to those officials’ self-interest, or
will it allow states to evade the intent of the
law by lowering standards? To date, the prevailing
practice has been to allow flexibility,
which in some states has resulted in lowering
rather than raising standards.

Proficiency Tests
Test scores that measure academic achievement
are the most important of all the areas in
which states are supposed to produce progress
under NCLB. Unfortunately, those scores are
also the easiest to manipulate through a variety
of statistical gimmicks that make schools
seem more successful than they are. For NCLB
to achieve its objectives, the state departments
of education would have to act with a degree
of rigorous candor that would be unprecedented
in their history.35

In this, as in other areas, the NCLB statute
is schizophrenic. It gives the federal government
a sweeping new role in promoting academic
excellence, but at the same time it
leaves most of the key decisions, and the
work of implementing them, in the hands of
the state education agencies. For example,
the word “proficiency” (including variants
such as “proficient”) appears literally hundreds
of times in the NCLB statute. It is at
the heart of the legislation’s basic purpose as
expressed in its opening sentence. (“The purpose
of this title is to ensure that all children
have a fair, equal, and significant opportunity
to obtain a high-quality education and
reach, at a minimum, proficiency on challenging
State academic achievement standards
and state academic assessments.”) But
strikingly, this crucial term is never defined.
While spending increased amounts of money
in the name of academic proficiency and
building up new federal powers, all of which
would horrify the original designers of our
limited central government, NCLB leaves it
entirely up to the states to decide just what
“proficiency” means and how to measure it.

Under NCLB the states have manifold
opportunities to “game the system” of testing
and reporting. They can use tests with questions
that are too easy. They can lower the
“cut score”: the number of questions that
must be answered correctly to establish a test
taker’s proficiency. They can switch tests every
few years, muddying long-term comparisons
and creating the artificial appearance of
short-term gains. They can abuse statistical
techniques by treating the most wildly optimistic
interpretation of a subgroup’s test
results as definitive even if there is only a
microscopic possibility that that interpretation
is correct. They can concentrate extra
tutoring and other resources on students who
are just slightly below the cut-score thresholds,
neglecting those who are well below or
well above. They can fail to adopt rigorous
procedures to prevent or detect cheating. In
hopes that future lawmakers will relax NCLB,
they can set their targets for “adequate yearly
progress” in such a way that they commit
themselves to only modest annual advances
at the outset but to much faster progress as
they near the 2014 deadline. As Frederick
Hess put it in a recent interview, “The whole
process invites gamesmanship.” He predicted
that the watering down of tests by the states
would be “inevitable.”36

The decades-old National Assessment of
Educational Progress provides the most consistent
available benchmark against which to
measure the states’ testing programs. Since it
is uniform from one state to another and
does not trigger any adverse consequences
(other than bad publicity) for states that do
poorly, it is far less vulnerable than the states’
tests to self-serving manipulation. It also is
clearly more demanding than most of those
tests, though many people believe it is not
demanding enough.37

NAEP’s reading test for fourth graders
found that in 2003 only 30 percent of those
children nationwide were achieving at a level
at or above “proficient.” Not one state had as
many as half of its fourth graders reaching
that level in the NAEP test; the highestachieving
state was Connecticut at 43 percent.
But in reporting the results from the
tests that they had designed and administered
themselves, all but eight states claimed
proficiency levels above 50 percent. The proficiency
figure that Mississippi reported from
its state test was 87 percent—even higher than
Connecticut’s self-reported 69 percent and
absurdly higher than Mississippi’s NAEP
score of 18 percent.38 Virginia, often praised
for its leadership in education reforms such as
its statewide “Standards of Learning,” reported
that 73 percent were at or above “proficiency”
in reading—compared with the NAEP
figure of 35 percent.39 Such astronomical
gaps make one wonder whether the coming
torrent of state reports on proficiency will
mean anything at all.

Reinforcing such concerns is the mounting
evidence that states are relaxing already established
standards to make it easier to reach the
NCLB target of universal math and reading
“proficiency” by the year 2014. Some have
openly adopted lower standards for NCLB
than for their own internal state assessments.
Education researcher Denis Doyle observed in
November 2002 that, “cynical as I am, I was
surprised at the speed and brazenness of states
and localities lowering standards to comply
with NCLB.”40 It is now possible for Louisiana
students to be classified as “proficient” in the
state’s NCLB reports even if their scores are
only at the lower, “basic” level on the scale that
the state adopted in 1999. A Colorado student
can now be “partially proficient” by state standards
but “fully proficient” by federal standards.
Connecticut has also embraced such a
double standard.41 Georgia has lowered the
number of correct answers required to pass its
third grade reading test.42 That NCLB would
actually cause the lowering of standards was
not what the White House and Congress
promised the nation when the statute was triumphantly
enacted, but that is what we are
getting.

The states seem to have learned from the
painful example of Michigan, a pioneer in
the state-level testing and accountability that
helped lay the groundwork for NCLB.
Precisely because Michigan had gone further
than almost any other state in adopting high
standards for academic outcomes, measured
by stringent tests, by the beginning of the
2002–03 school year it found itself with more
“failing” schools than any other state. NCLB
was making Michigan look worse than other
states that had set the bar lower.43 Michigan
responded to this embarrassment by lowering
the passing rate on its high school
English test from 75 percent to 42 percent—
which helped reduce its reported number of
failing schools from 1,500 to 216.44

A more subtle method of boosting apparent
performance is the misuse of “confidence
intervals.” In its proper place, a confidence
interval is an accepted statistical technique
for taking into account the fact that quantitative
measuring tools are inevitably subject
to some degree of error. Most of us are familiar
with opinion polls that include margins
of error. For example, a pollster might report
that 55 percent of his sample of voters are for
candidate Jones and 40 percent for candidate
Smith. Depending on matters such as sample
size, the pollster might add that he has 90
percent confidence that those figures are
accurate within five percentage points—or 95
percent confidence that they are accurate
within 10 percentage points. The higher the
level of confidence demanded, the wider the
range around the reported result; thus in this
hypothetical example the number of Jones
supporters would range from 50 to 60 percent
if one demanded 90 percent confidence
but from 45 to 65 percent if one demanded
95 percent confidence.

Richard Innes, a Kentucky education
researcher who has worked on this issue with
the Bluegrass Institute, said in a telephone
interview that state education officials in
Kentucky at first “panicked when NCLB came
out, but somebody came up with a brilliant
solution: Insist on a very high degree of certainty.”
Kentucky chose 99.5 percent confidence,
which according to Innes is “a degree of
certainty which nobody uses except for matters
such as equipment on airplanes; usually
educational statisticians settle for around 90
percent.” Naturally, the resulting error range,
the “confidence interval,” is extremely wide. As
Kentucky interprets the NCLB rules—an interpretation
accepted by the federal regulators—it
is only necessary for the top edge of that range
to be at or above the passing threshold for a
school to pronounce that it is meeting its target
number of students achieving proficiency.
Innes said that in some smaller schools the
confidence interval has turned out to be as
wide as 3 percent to 97 percent, with the
school needing an average score of only 50 percent
to meet its proficiency target. “They are
guaranteed to meet that standard,” he said.
“It’s a con game.”45

More measured in its language than
Innes, but essentially supporting his analysis,
was a September 2004 study of NCLB implementation
by the congressional oversight
agency, the U.S. Government Accountability
Office. GAO found that


some states used statistical methods,
such as confidence intervals, which may
result in more of their schools reaching
proficiency goals than states that do not.
For instance, Tennessee—a state that initially
did not use confidence intervals but
later received approval to do so—re-analyzed
its data from 2002–03, applying
confidence intervals. The application of
confidence intervals substantially decreased
the number of schools not meeting
state goals. The number of elementary
and middle schools not making
state goals was reduced by over half—47
percent to 22 percent. The application of
confidence intervals can produce such
differences because the computed ranges
can be large, especially when small numbers
of students make up groups or
when scores vary significantly among
students. For example, in a Kentucky
high school, 16 percent of students with
disabilities scored at the proficient level
on a state test in 2004, and the goal was
19 percent. However, when the state
applied confidence intervals, the computed
interval associated with 16 percent
was 0 to 33 percent. Because the state
goal—19 percent—was within the confidence
interval, the state considered this
group to have met the goal.46

Yet another method the states use to
evade NCLB’s intent is what former assistant
secretary of education Chester Finn has
called the “balloon mortgage” tactic. In theory,
states are supposed to achieve “adequate
yearly progress” at a steady pace between now
and 2014, the target year for 100 percent
“proficiency.” They are not supposed to
“backload” their accountability plans by setting
goals of only tiny annual improvements
for the next few years and then much larger
gains later.47 But in January 2003 Finn
reported that federal officials had approved
NCLB plans from Ohio and Indiana in which
those two states claimed that they would
“squeeze half of the necessary achievement
growth into the final quarter of the twelveyear
period”—like a homeowner agreeing to a
low interest rate during the first few years of
a mortgage and a higher rate later. As Finn
put it, the state officials’ strategy is apparently
to “deliver a little in the next few years, and
quite a lot down the road—but with any luck
somebody else will be on duty when the
‘quite a lot’ time hits.”48

Finn suggested that
to believe that this approach is plausible,
you have to believe that academic
gains will be made in U.S. schools at an
accelerating pace, indeed that as the
going gets hardest—moving those last,
toughest kids over the hump to proficiency—
the rate of improvement will
speed up. . . . What I think is going on,
cynic though you may call me, is that
clever folks in at least two states figured
out that, by the time 2011 rolls around,
none of them will be responsible any
longer. They’ll all have moved on to new
jobs, retired to their ranchettes, taken
high-level posts in Washington, whatever.
Nor will anybody from the Bush
Administration still be in office after
January 20, 2009. Hence the immense
achievement gains being promised for
those last three years of the NCLB
timetable will be somebody else’s problem
to deliver. The incumbents will, in
effect, have sold the property before the
balloon part of the mortgage hits.49
A study published in July 2004 by the
Public Affairs Research Council of Louisiana
found that as many as 20 states have now
submitted NCLB plans with similar backloaded
approaches. Some 17 of those states
backloaded their projections for adequate
yearly progress to “just after the 2007 ESEA
re-authorization, apparently assuming that
the goals will be modified substantially.”50

As state officials have become more familiar
with the NCLB statute and with the U.S.
Department of Education’s interpretation of it,
more of the states have joined the rush to relax
standards. By September 2004, 47 states had
filed requests for the U.S. Department of
Education to approve changes to their NCLB
plans that would in many cases make it easier
for them to show adequate yearly progress.51
Education Week reported of the encouraging figures
announced by many states that “while
state press releases have largely attributed the
gains to hard work and better test scores, at
least part of the reason stems from changes in
state accountability plans and the additional
flexibility granted by the federal government.”
For example, the number of schools claiming to
have met the annual progress targets in North
Carolina jumped from 47 percent of all schools
statewide in the 2002–03 school year to 70 percent
in 2003–04. The rise in Pennsylvania was
from 62 percent to 81 percent. While officials in
both states insisted that part of those gains represented
real improvement, they admitted to
Education Week that many of the numerical differences
reflected the use of confidence intervals.
52

Jack Jennings, head of the Center on
Education Policy, said in a December 8, 2004,
interview that he thought that the federal
department had been “too rigid” during the
first year and part of the second year after
NCLB was enacted but “became more flexible
after state legislatures started to rebel.” He also
suggested that the upcoming 2004 presidential
election caused the Bush administration
to “go easy.” In his view, the U.S. Department
of Education has now been trying to accommodate
appeals from individual states—but,
he said, “without understanding the impact of
this on all the states as a whole.”53
In October 2004 the Center on Education
Policy published a detailed analysis of requests
by states for changes in their NCLB accountability
plans and of the U.S. Department of
Education’s responses to those requests.
While cautioning that “to make an informed
statement on any state’s plan requires not only
a knowledge of what target of student proficiency
a state has set, but also all the other features
of the plan,” the analysis found that “the
changes, in total, give states and school districts
more ‘wiggle room’ . . . [and] might be
seen as allowing for short-term flexibility in
implementation while maintaining the law’s
long-term overall direction.”54 All the changes
specifically cited had the effect of making it
easier for the states to report that they were
meeting the NCLB targets.

The effect of such concessions is not only
to encourage other states to seek similar concessions
but also to make year-by-year comparisons
dubious. Parents and taxpayers may
think that schools are on track in meeting
NCLB’s increasingly strict criteria for adequate
yearly progress, when in fact the criteria
are simply being applied more leniently. For
example, some state school officials initially
feared that nearly all their school districts
would be classified as needing improvement
by the end of the 2003–04 school year, when
for the first time they would be at risk of having
fallen short of their adequate yearly
progress targets for two consecutive years. But
the federal regulators reduced that risk by
allowing states to put school districts in the
“needing improvement” category only if they
failed to meet their targets at all three levels—
elementary, middle, and high school—not just
one or two of them. A North Carolina official
told Education Week that nearly 85 or 90 percent
of that state’s districts would have been in
that category if it had not been for the U.S.
Department of Education’s new flexibility.55

Another problem with NCLB is the way it
seems to encourage schools to neglect the
most promising students. As a high-stakes system
that threatens concrete, painful consequences
for falling short, the statute gives educators
a perverse incentive to concentrate only
on those students whose performance will
make the biggest difference in meeting the
stated threshold. Educators have no incentive
under NCLB to improve further the performance
of students who are already well above
the level of “proficiency.” Instead of working to
turn superior students into outstanding students,
schools that want to avoid unpleasant
consequences would be well advised to concentrate
on turning inferior students into barely
adequate students. NCLB thus subtly encourages
them to neglect the gifted and talented.56

Cheating
More serious than “gaming the system” is
outright cheating: not just publicly bending
the rules but secretly breaking them outright.
Teachers who leak specific test questions to
students in advance, or coach them while they
are being tested, or doctor the students’ answer
sheets before sending them off for scoring are
manifestly violating the stated policies of their
own school systems. Are the state education
agencies and local districts doing enough to
detect and deter such cheating?

In December 2004 and January 2005, the
Dallas Morning News published a devastating
series of articles about Texas schools with suspicious
anomalies, where “scores swung wildly
from year to year. Schools made test-score
leaps from mediocre to stellar in a year’s time.”
The scores then often “came crashing down”
when those seemingly stellar students left
their elementary schools and went on to middle
schools.57 In June 2003 one teacher told
the Houston School Board that she had been
encouraged to cheat and instructed on how to
do so, but apparently neither the school board
nor the state education authorities responded
seriously to her charges until the Dallas newspaper
blew the whistle. That teacher was from
Wesley Elementary School—one of the most
famous schools in Texas, lauded repeatedly by
former Houston school superintendent (and
former U.S. secretary of education) Rod Paige
as an example for others.58

Overall, the Morning News found such suspicious
test score anomalies at as many as
400 schools statewide. It should be stressed
that this figure represents only about 5 percent
of the state’s 7,700 schools.59 But it also
should be noted that Texas state education
officials do not regularly monitor test results
to seek such anomalies, though they do conduct
specific investigations in response to
specific complaints. For the most part they
let the local school districts police themselves—
a pattern that seems to be widespread
among other states.60 The state education
agencies can

— Lawrence A. Uzzell
Public Affairs/Cato Institute
2005-05-31
http://us.gallerywatch.com/pipefile.asp?sessionid=%7b1FEE5A2B-CFCE-4FA7-AECE-7F238DA8DDEB%7d&type=pdf&sid=AGDOC:10447:docs%2Fnews%2FUS%2Fagdocs%2Fpa54


INDEX OF NCLB OUTRAGES


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