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NCLB Outrages

2 million scores ignored in ‘No Child’ loophole

With help of states, U.S. government, schools duck potential penalties. That's the spin, which is traveling around the country like wildfire. Monty Neill of FairTest points to the facts:

The claim that 2 million scores are being ignored by states is a fraud that I've already seen pop up as "fact" in other news stories.

Yes, some states have large cell sizes - while others are quite small.

Staiger and Kane showed prior to passage of NCLB that cell sizes smaller than 67 are dangerously low. Walt Haney's research suggested 100 was the minimum number. When states first set theirs, 30 was typical.

The original article argued that not counting even one child was a form of hiding them and escaping problems. But Congress included (in a rare moment of sanity) the cell size requirement for 2 reasons: to ensure student anonymity, and to ensure large enough groups to allow accurate identifications. Whether the quoted parents understand how this process works, I do not know: would they like their child identified. Should a school be labeled failing if one or 5 kids is not "proficient" (really, has a high enough score on a test that does not match any reasonable set of standards).

by Associated Press

Editor's Note: More than four years after President Bush
signed the No Child Left Behind Act, nearly 2 million
children’s test scores aren’t being counted under the law’s
required racial categories. An Associated Press review found
states are exploiting a legal loophole that is giving a false
picture of academic progress. The law also is creating
financial gain for some private consultants, and leaving
teachers increasingly skeptical that all children will be able to
read and perform math as promised. This is the first of a
four-part series describing what AP found across the country.

States are helping public schools escape potential penalties
by skirting the No Child Left Behind law’s requirement that
students of all races must show annual academic progress.

With the federal government’s permission, schools aren’t
counting the test scores of nearly 2 million students when
they report progress by racial groups, an Associated Press
computer analysis found.

Minorities — who historically haven’t fared as well as whites
in testing — make up the vast majority of students whose
scores are being excluded, AP found. And the numbers have
been rising.

“I can’t believe that my child is going through testing just like
the person sitting next to him or her and she’s not being
counted,” said Angela Smith, a single mother. Her daughter,
Shunta’ Winston, was among two dozen black students whose
test scores weren’t broken out by race at her suburban
Kansas City, Mo., high school.

Under the law championed by President Bush, all public
school students must be proficient in reading and math by
2014, although only children above second grade are
required to be tested.

Schools receiving federal aid also must demonstrate annually
that students in all racial categories are progressing or risk
penalties that include extending the school year, changing
curriculum or firing administrators and teachers.

Education Department stymied
The U.S. Education Department said it didn’t know the
breadth of schools’ deliberate undercounting until seeing AP’s

“Is it too many? You bet,” Education Secretary Margaret
Spellings said in an interview. “Are there things we need to do
to look at that, batten down the hatches, make sure those
kids are part of the system? You bet.”

Students whose tests aren’t being counted in required
categories include Hispanics in California who don’t speak
English well, blacks in the Chicago suburbs, American Indians
in the Northwest and special education students in Virginia,
AP found.

Bush’s home state of Texas — once cited as a model for the
federal law — excludes scores for two entire groups. No test
scores from Texas’ 65,000 Asian students or from several
thousand American Indian students are broken out by race.
The same is true in Arkansas.

One consequence is that educators are creating a false picture
of academic progress.

“The states aren’t hiding the fact that they’re gaming the
system,” said Dianne Piche, executive director of the Citizens’
Commission on Civil Rights, a group that supports No Child
Left Behind. “When you do the math ... you see that far from
this law being too burdensome and too onerous, there are all
sorts of loopholes.”

The law signed by Bush in 2002 requires public schools to
test more than 25 million students periodically in reading and
math. No scores can be excluded from the overall measure.

But the schools also must report scores by categories, such as
race, poverty, migrant status, English proficiency and special
education. Failure in any category means the whole school

Anatomy of a loophole
States are helping schools get around that second
requirement by using a loophole in the law that allows them
to ignore scores of racial groups that are too small to be
statistically significant.

Suppose, for example, that a school has 2,000 white students
and nine Hispanics. In nearly every state, the Hispanic scores
wouldn’t be reported because there aren’t enough to provide
meaningful information.

State educators decide when a group is too small to count.
And they’ve been asking the government for exemptions to
exclude larger numbers of students in racial categories.
Nearly two dozen states have successfully petitioned the
government for such exemptions in the past two years. As a
result, schools can now ignore racial breakdowns even when
they have 30, 40 or even 50 students of a given race in the
testing population.

Students must be tested annually in grades 3 through 8 and
at least once in high school, usually in 10th grade. This is the
first school year that students in all those grades must be
tested, though schools have been reporting scores by race for
the tests they have been administering since the law was

1 in every 14 scores ignored
To calculate a nationwide estimate, AP analyzed the 2003-04
enrollment figures the government collected — the latest on
record — and applied the current racial category exemptions
the states use.

Overall, AP found that about 1.9 million students — or about
1 in every 14 test scores — aren’t being counted under the
law’s racial categories. Minorities are seven times as likely to
have their scores excluded as whites, the analysis showed.

Less than 2 percent of white children’s scores aren’t being
counted as a separate category. In contrast, Hispanics and
blacks have roughly 10 percent of their scores excluded. More
than one-third of Asian scores and nearly half of American
Indian scores aren’t broken out, AP found.

Ms. Smith’s family in Missouri demonstrates how the
exemptions work. Shunta’ and other black children in tested
grades at Oak Park High School, which is in a mostly white
suburban Kansas City neighborhood, weren’t counted as a
group because Missouri schools have federal permission not
to break out scores for any ethnic group with fewer than 30
students in the required testing population.

“Why don’t they feel like she’s important enough to rearrange
things to make it count?” her mother asked.

Hundreds of thousands

In all, the tests of more than 24,000 mostly minority children
in Missouri aren’t being counted as groups, AP’s review
found. Other states have much higher numbers. California, for
instance, isn’t counting the scores of more than 400,000
children. In Texas, the total is about 257,000.

State educators defend the exemptions, saying minority
students’ performance is still being included in their schools’
overall statistics even when they aren’t being counted in racial

Scott Palmer, a consultant for the Council of Chief State
School Officers in Washington, said he hoped critics will focus
on the 23 million children whose scores are being counted by
schools rather than those whose scores aren’t reported

“There’s a huge positive feeling for the notion” of making
schools accountable, Palmer said. “It’s a huge plus.”

Spellings said she believes educators are acting in good faith.
“Are there people out there who find ways to game the
system? Of course,” she said. “But on the whole ... I fully
believe in my heart, mind and soul that educators are people
of good will.”

States get exemption
Bush has hailed the separate accounting of minority students
as a vital feature of the law. “It’s really essential we do that.
It’s really important,” Bush said in a May 2004 speech. “If you
don’t do that, you’re likely to leave people behind. And that’s
not right.”

Nonetheless, Bush’s Education Department continues to give
widely varying exemptions to states:

--Oklahoma lets schools exclude the test scores from any
racial category with 52 or fewer members in the testing
population, one of the largest across-the-board exemptions.
That means 1 in 5 children in the state don’t have scores
broken out by race.
-- Maryland, which tests about 150,000 students more than
Oklahoma, has an exempt group size of just five. That means
fewer than 1 in 100 don’t have scores counted.
--With one of the most diverse school populations in the
nation, Florida has been allowed to create a special
“provisional,” or probationary, category for schools that are
failing to meet the law’s requirements. The deal helped
reduce the number of failing Florida schools from 73 percent
in 2003 to 37 percent in 2004.
--Washington state has made 18 changes to its testing plan,
according to a February report by the Harvard Civil Rights
Project. Vermont has made none. On average, states have
made eight changes at either the state or federal level to their
plans in the past five years, usually changing the size or
accountability of subgroups whose scores were supposed to
be counted.

Toia Jones, a black teacher whose daughters attend school in
a mostly white Chicago suburb, said the loophole is enabling
states and schools to avoid taking concrete measures to
eliminate an “achievement gap” between white and minority

“With this loophole, it’s almost like giving someone a trick
bag to get out of a hole,” she said. “Now people, instead of
figuring out how do we really solve it, some districts, in order
to save face or in order to not be faced with the sanctions,
they’re doing what they can to manipulate the data.”

‘We're part of America’
Some students feel left behind, too. “It’s terrible,” said
Michael Oshinaya, a senior at Eleanor Roosevelt High School
in New York City who was among a group of black students
whose scores weren’t broken out as a racial category. “We’re
part of America. We make up America, too. We should be
counted as part of America.”

Spelling’s Education Department is caught between two
forces. Schools and states are eager to avoid the stigma of
failure under the law, especially as the 2014 deadline draws
closer. But Congress has shown little political will to modify
the law to address their concerns. That leaves the racial
category exemptions as a stopgap solution.

“She’s inherited a disaster,” said David Shreve, an education
policy analyst for the National Conference of State
Legislatures. “The ’Let’s Make a Deal’ policy is to save the law
from fundamental changes, with Margaret Spellings as Monte

Single-standard solution?
The solution may be to set a single federal standard for when
minority students’ scores don’t have to be counted
separately, said Ross Wiener, policy director for the
Washington-based Education Trust.

The law originally created the exemptions to make sure
schools didn’t unfairly fail schools or compromise student
privacy when they had just a small number of students in one
racial category, Wiener said.

But there’s little doubt now that group sizes have become
political, said Wiener, whose group supports the law.

“They’re asking the question, not how do we generate
statistically reliable results, but how do we generate politically
palatable results,” he said.

— Associated Press


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