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NCLB Outrages

Department Raps States on Testing

By Lynn Olson

The U.S. Department of Education has notified 10 states that it intends to withhold a portion of their state administrative funds under the Title I program for failing to comply fully with the testing provisions of the No Child Left Behind Act by the end of the 2005-06 school year. Those funds would instead be diverted directly to school districts.

Twenty-five additional states, the District of Columbia, and Puerto Rico also could have a portion of their aid withheld if they fail to meet timelines for having their testing systems fully in compliance with the federal law by the end of the coming school year.

Coupled with a recent threat to withhold money from states that fail to meet the law’s requirements for “highly qualified” teachers, the move signals a significant toughening in the enforcement of the federal law, a reauthorization of the Elementary and Secondary Education Act.

Department officials had been warning states since President Bush signed the legislation in January 2002 that there would be no waivers to the testing requirements, which are the basis for holding schools and districts accountable under the law. But the monetary penalties caught many states by surprise, and a number of officials said this week they would contest the decisions.

“We will challenge the findings,” said Nebraska Commissioner of Education Doug Christensen, during a press conference held today.

Nebraska and Maine are the only two states that received an initial designation of “nonapproved,” the lowest possible category, and must enter into a compliance agreement with the federal government. Mr. Christensen said he felt “blindsided” by the decision and disappointed in his interactions with federal officials, who refused a face-to-face meeting before a decision was made.

Others were equally dismayed.

“Like many states, Illinois has some serious misgivings about the Education Department’s characterization of our assessment system,” said Meta M. Minton, a spokeswoman for the Illinois education department, which could have $540,228 in state administrative funds withheld and passed on, instead, to its districts. “We believe that, overall, Illinois’ system should be viewed as a success.”

By July 1, federal officials had notified states by letter or by phone about the initial status of their testing systems under the act. States threatened with an immediate loss of money have 20 business days from the receipt of their letter to challenge the findings and submit additional data.

In addition to losing some administrative funds—ranging from 10 percent to 25 percent, depending on their status—states that are not in full compliance with the testing provisions cannot apply for additional flexibility under the law, such as switching the order in which they offer students school choice and supplemental tutoring services in schools identified for needing improvement.

Some states—such as Michigan and New York—also have been told they cannot count as proficient the scores of certain students in determining whether schools made adequate yearly progress in 2005-06, notably those with disabilities who took tests that were found to be out of compliance with the act.

“Doomsday has arrived, and we all need to deal with it,” Sue Rigney, an assessment specialist in the federal office of elementary and secondary education, told state testing directors last month at the Council of Chief State School Officers’ annual conference on large-scale assessment in San Francisco.
Documentation Lacking

The federal law requires states to test students in reading and mathematics annually in grades 3-8 and at least once in high school, beginning with the 2005-06 school year, using tests aligned with their state academic standards. States must include students with disabilities and English-language learners in their testing systems. They must also include the development of alternate assessments, including ones pegged to a measure other than a grade-level standard for students with significant cognitive disabilities who cannot participate in the regular state tests.

Providing sufficient technical documentation that they have met all those requirements on schedule has proved a tall order for many states.

“There are many states whose technical manuals are not very comprehensive and complete,” said Ellen Forte, an independent consultant based in Washington who has helped review state testing systems for the Department of Education. “States are so busy doing the work, they don’t really have time to document it.”

To determine whether states’ testing systems met the law’s requirements, the department used a “peer review” process, in which a team of three outside experts in standards and assessments spent up to two-and-a-half days reviewing boxes of documents submitted by each state, in response to some 150 questions about the characteristics of their testing system. In some cases, states underwent a second peer review to examine additional evidence submitted. Federal officials used those reports to decide on the status of each state’s assessments, from full approval to nonapproved.

Most state officials described the review process as helpful. But some charged that the decisions by federal officials based on those reviews were inconsistent across states and either failed to take account of some of the evidence submitted or to accurately reflect what the peer reviewers had found.

“We’re fairly optimistic that we can get this worked out,” said Deborah Graves Ratcliffe, the spokeswoman for the Texas Education Agency, which could lose nearly $1.19 billion in state administrative funds. “It was a very long and arduous process. We sent them boxloads of material. And I’m sure every state sent them boxloads of materials. So there are times when we’re not sure they completely read or understood what we sent them.”

Others agreed.

“We felt that the peer-review process was a very healthy one,” said Maine Commissioner of Education Susan A. Gendron. “My concern is there seems to be variations in interpretation across the states. When I look at our fellow states that have many more issues than we do, who have ‘approval pending,’ I think we should definitely be in that category.”

Maine’s letter cited concerns about its alternate assessments and about its use of the SAT as its high school test, without providing additional proof that the college-admissions exam is aligned to the state’s content standards. Ms. Gendron said the state planned to submit additional evidence within the next 20 days. “I’m hoping we’re going to change that status to, hopefully, ‘approval expected,’ if not ‘approval pending’,” she said.
Review Process Criticized

As in Maine, the biggest challenge for many states was to set performance standards on their alternate assessments and to prove that those tests are aligned with state content standards and meet technical criteria for quality.

States also struggled to demonstrate that they were providing appropriate accommodations for special education students and those still learning English; to show that their tests and their content standards were sufficiently aligned; and to demonstrate that different forms of state tests are comparable, such as scores from paper-and-pencil tests and computer-administered exams, or Spanish translations of state assessments.

A number of states have complained that it was impossible to provide all the documentation on schedule, when many states gave their full complement of NCLB tests for the first time this past spring—and when the department had failed to release clear guidance about tests for students with disabilities until late last year.

Some also criticized what they called the “evolving nature” of the review process itself.

Although only 19 states had met all the testing provisions under the previous reauthorization of the federal law by 2002, few had felt any consequences. So the department’s firm stance this time around seemed to catch many states off guard.

Some questioned whether the department even has the authority to withhold funds and divert them to local districts. “There is no explicit authority for USDE to withhold funds as a condition of forcing compliance,” charged Commissioner Christensen of Nebraska.

Scott R. Palmer, a lawyer with the Washington-based firm of Holland & Knight who works with a number of states on NCLB issues, said, “It’s an open question, and I think that there’s a lot of things that we need to look at here to make sure that the system makes sense.”

The approval status of state testing programs could change in the next few months depending on additional evidence submitted to the federal government.

State Status

The U.S. Department of Education intends to withhold a portion of state administrative funds under the Title I program for states that have failed to fully comply with NCLB testing provisions. Following is a list of the different categories states have been placed in based on evaluations by the department.
Click on each status level for detail.

* Full Approval
Maryland, Oklahoma, Tennessee, West Virginia

* Full Approval with Recommendations
Arizona, Delaware, Indiana, North Carolina, South Carolina, Utah

* Approval Expected
Alaska, Connecticut, Louisiana, Massachusetts

* Approval Pending, No Withholding, Level 1
Alabama, Iowa, Michigan, New Hampshire, New Jersey, New York, North Dakota, Ohio, Rhode Island, Vermont, Virginia

* Approval Pending, No Withholding, Level 2
Arkansas, California, Colorado, District of Columbia, Florida, Georgia, Idaho, Missouri, Nevada, New Mexico, Oregon, Pennsylvania, Puerto Rico, Washington, Wisconsin, Wyoming

* Approval Pending, Withholding Funds
Hawaii, Illinois, Kansas, Kentucky, Minnesota, Montana, South Dakota, Texas

* Not Approved
Maine, Nebraska

* Note Because of Hurricane Katrina, Mississippi received a one-year extension, until 2006-07, to meet testing requirements.

— Lynn Olson
Education Week


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