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NCLB Outrages

Inflating the Life Rafts of NCLB

Ohanian Comment: Note how the American Enterprise Institute sets the agenda by defining the problem and then presenting what they determine are the range of solutions. Progressive should stop underestimating groups like AEI. Dismissing them as demons isn't a strategy. It isn't even an argument.

Notice that buried in the AEI solutions is the expansion of cyber schools and charter schools. Coincidentally, Fordham has just announced it's

In identifying himself for the PDK audience, Hess labeled himself "a former high school social studies teacher." He dropped this label when posting the article on the AEI website.

To no one's surprise, the No Child Left Behind (NCLB) Act has become a political football in this election season. Amidst the heated rhetoric and impassioned claims, it can be easy to forget that NCLB is no one thing but rather an awkward compendium of many disparate pieces. While public officials are pressed to render absolute judgments--that NCLB is a wondrous advance or a malign mistake--observers and educators must recognize that anything as unwieldy and complex as this law will inevitably yield mixed results.

Sorting through those mixed results requires sifting through the law's many elements and learning how each of them works. In this piece, we turn our attention to the first remedies prescribed by NCLB for children in schools identified as needing improvement: the supplemental educational services and public school choice provisions, both of which constitute the choice-based element of the NCLB design. These provisions are a limited, but crucial, component of NCLB. They are the life rafts that Congress is throwing to children in our most troubled schools, and they are also hammers intended to pound districts into taking the hard steps that are so essential to improving those schools.

Less than three years after passage, it's premature to gauge NCLB's "success"--whether it has helped or hindered student achievement. But it's not too early to ask whether various provisions are being conscientiously and constructively implemented or appear likely to work as intended. If yes, then those provisions of NCLB should be given time to work while being closely watched and objectively evaluated. If no, then federal policy makers should consider making midcourse corrections in these elements of the law. Such steps, taken at an early stage when states and districts are still formulating policies, could prove far easier than efforts at a later date to alter ingrained practices and entrenched assumptions.

Nothing is gained by avoiding the question of how the law is working or innocently assuming that well-intentioned efforts will suffice. As veteran policy analyst Michael Kirst has noted, it took more than a decade and multiple legislative and administrative adjustments before the Title I program in the original 1965 Elementary and Secondary Education Act (ESEA) really functioned as intended.[1] That's the norm for ambitious new federal programs: they rarely work smoothly at the outset. Instead, they bring a raft of unforeseen problems, unintended consequences, unwanted loopholes, and unworkable features.

In fact, NCLB is vastly more ambitious than the original ESEA. The original Title I program sought to spread additional money to established institutions and interests. ESEA's mechanisms were purely fiscal, and the main implementation challenges were how to get the new money to its intended recipients and ensure that it was spent in permissible ways. Though that entailed complex calculations and intricate procedures, in reality the original Title I program nestled reasonably well into existing arrangements. By contrast, NCLB's goals, mechanisms, and remedies do not fit neatly into the status quo. One may fairly say they ask states and school districts to engage in unfamiliar, even unnatural, acts.

At NCLB's heart is the insistence that public schools annually test all students in grades 3 through 8 in reading and math and that every state measure whether its public schools are making "adequate yearly progress" (AYP) toward universal pupil proficiency in those two core subjects. Schools must show steady improvement in every grade and for multiple demographic groups. If they do not, various sanctions and interventions are supposed to follow in a scripted sequence.

Among those interventions are the twin NCLB provisions designed to offer better education options to students stuck in faltering schools and also intended, via competitive pressures, to create incentives for those schools to improve. If a Title I school fails to make its AYP target for two consecutive years, its students are supposed to be offered "public school choice." The local district is to provide each student with a choice of alternative public (including charter) schools that are making adequate yearly progress. If a student's school fails to make AYP for three consecutive years, the district is supposed to provide that child with the opportunity to enroll in "supplemental educational services"--which in practice typically amount to about 30 hours of free after- school tutoring. Various providers, including private vendors, can deliver the tutoring, which is to be paid for with a portion of the school's Title I dollars.

It is important to recognize that NCLB's choice provisions were not designed primarily to enhance school options or to foster choice per se. Rather they were, first, to give students in failing schools access to other places and service providers whereby they could learn reading and math and meet NCLB standards and, second, to give failing schools an incentive to improve by threatening to reduce their enrollments and budgets.

Because it's early in the implementation cycle, it is difficult for evaluators to assess the performance of these measures in any conclusive fashion. In truth, there is immense variability across communities in how parents and districts are making use of the remedies.[2] The appropriate question to ask today about the choice provisions (and, indeed, about all provisions of NCLB) is whether, as presently constituted, they have a reasonable chance of succeeding given time and practice or whether they assume things that are extremely unlikely to happen. If the latter is the case, then the provisions need rethinking and reshaping, not just patience, practice, and minor adjusting.

Lessons Learned

Thus far, we think six key lessons have emerged regarding the workings of the NCLB choice provisions.[3]

First, NCLB's choice provisions currently rely on local school systems to engage in what, for most, are unfamiliar and unnatural actions that clash with what they perceive to be their own interests. Districts, and to some extent states, are instructed to tackle tasks that many of them cannot do, will not do, or won't be able to do with the energy and finesse required by the new responsibilities and unfamiliar tasks. This reality makes it likely that NCLB's choice provisions will fare poorly except in circumstances where they happen to mesh with preexisting policy preferences and practices.

One dilemma is that effective schools that find room to attract students from troubled schools are likely to suffer in terms of academic results, while schools that shed these pupils may either benefit or worsen under NCLB-style accountability. This depends on which students change schools. If relatively high-performing students leave a low-performing school, its results may deteriorate, even as those same youngsters tug downward on test scores in the high-performing schools that they enter. Where, in this picture, is the incentive for either the sending or receiving school to facilitate choice?

Second, the NCLB supplemental service and public choice provisions are playing out very differently, with the former unexpectedly proving to be somewhat more acceptable to school districts. Many policy skeptics, ourselves included, assumed when the law was passed that districts would be more comfortable with public school choice, which at least keeps all the federal money inside the public education system. That, we supposed, was why Congress treated the supplemental services provision as the more draconian intervention, to kick in only after three years of school failure, including a year of public school choice. In reality, it appears that districts are more troubled by the challenges of choice than by the supplemental services mandate.[4] Perhaps this is because districts are themselves purveyors of services while also serving as referees and gatekeepers for other providers.

Still, we are struck that supplemental services (viewed by some proponents as "mini-vouchers") are widely regarded by districts as minimally disruptive. Students using them remain in their accustomed schools, which means that identifying eligible pupils and service providers relatively late in the school year is not an insuperable problem. With the choice option, on the other hand, districts must find space in schools that are making adequate yearly progress. Because districts don't want to disrupt bus routes and are often restricted by laws, policies, or court orders governing student assignment and ethnic balance, they frequently regard the public choice mandate as a huge bother.

Moreover, some principals and district officials seem to view providing supplemental services as a potentially useful tool that can help boost student performance, improve school outcomes, and increase the prospects for making AYP. By contrast, they see choice as a mechanism for shifting children from one school to another, not solving any problems at the sending school and perhaps creating new ones at the receiving school.

Third, statutory constraints built into NCLB's public choice provision create such limited options--namely, other public schools within district boundaries--that, in many communities, they'll prevent most children from availing themselves of better educational opportunities. The Citizens' Commission on Civil Rights reports that just 5.6% of eligible students requested transfers to higher-performing schools in 2003-04 and that fewer than one-third of those (just 1.7% of eligible students) ultimately transferred.[5]

Student movement is constrained both by the paucity of existing options and by the lack of incentives to create new ones. Since districts must offer pupils the opportunity to transfer only into schools that are making their AYP targets, youngsters in the most troubled school districts can find few real options. Because students coming from poorly performing schools are unlikely to boost a receiving school's performance, principals at AYP-compliant schools have no incentives to accommodate more children. Most good charter schools already boast waiting lists, and high-performing, often suburban, school districts have shown no inclination to accept students from poor schools in adjacent communities. Rural communities may have but a single school and may also lack the population density to attract private providers of supplemental services. The result: there is not enough space in high- performing schools to provide attractive alternatives for more than a handful of students.

Meanwhile, NCLB contains few incentives for states or districts to create more high-performing schools. Nothing in the law suggests that state or district leaders will benefit by taking such steps, nor does the law identify sanctions for failing to do so. Instead, the status quo remains intact, with all its preexisting obstacles and logjams.

For instance, in the past two years, charter schools have come under increased political opposition and scrutiny, with more states moving to limit their growth and expansion, curb their funding, and burden them with added regulations. NCLB does nothing to encourage districts or states to create more room in effective public schools, while the law's accountability mechanisms can actually backfire on AYP-compliant schools that make room for more than a handful of students from failing schools. Some of the perverse consequences of NCLB's choice and accountability policies may even deter a school district that was considering its own choice programs. Consider: students who move may aggravate the AYP prospects of both the sending and receiving school.

NCLB's fiscal considerations may also serve to dissuade districts from enthusiastically promoting the law's choice options. The more that students avail themselves of NCLB's options, the more that districts will have to devote their mandatory 20% Title I budget "set-aside" to these activities rather than to extant programs--and the more likely that even 20% won't be sufficient to pay for the demand.

Fourth, the NCLB choice mechanisms, besides yielding few viable options for children, are unlikely to be "felt" by schools or districts in ways that prompt them to improve. Hence, they are unlikely to cause schools to alter their practices in the achievement-enhancing and customer- satisfying ways that the law's framers envisioned. It's unrealistic to imagine that a school is going to turn itself inside out because it's losing 10 or 20 kids to intradistrict choice or because 75 students sign up for tutoring through a nondistrict provider. After all, few tangible consequences flow to individual schools. Moreover, some of those consequences--like less-crowded facilities--are more attractive than repugnant. And many troubled schools are in states or districts where sundry forms of school choice, including interdistrict choice, magnet schooling, and charter schools, have long been the norm. In communities like Milwaukee, Philadelphia, Houston, Dayton, Miami, Los Angeles, San Diego, Boston, or Washington, D.C., schools have operated for a number of years within a framework of burgeoning choice programs. If a number of district schools are failing to make AYP after years of discipline exerted by this "competition," one must wonder why NCLB's marginal changes would dramatically alter the picture.

Fifth, state school chiefs have been unenthusiastic about using the NCLB choice provisions as levers to drive school improvement. For the most part, state education and political leaders seem to regard themselves as bystanders when it comes to NCLB's choice provisions. They have left these provisions to local districts, and they appear to believe that the burden for ensuring that districts are behaving responsibly falls squarely on the U.S. Department of Education. Although the federal agency has been blessed with uncommonly creative and committed leadership in its Office of Innovation and Improvement (the unit charged with implementing NCLB's choice programs), states have not done their parts.

States have been unhurried about identifying failing schools; ensuring that eligible students receive timely, accurate information and appropriate choices; demanding that districts find desirable placements for students who wish to exit from failing schools; or pressing districts to fulfill the spirit of the law.[6] States do not even gather good data on how many students are being served by NCLB's public school choice and supplementary services provisions or how well their districts are complying with these features of the law. And they're doing little to reward and encourage districts to develop more options for children. Yet decades of federal education law make clear that Washington's proper relationship is with states and that the states are supposed to work with districts to ensure that federal programs are successfully implemented.

Finally, the clash between the rules dictated by NCLB and preexisting accountability systems in states like California and Florida is yielding immense confusion. This problem goes beyond the choice programs, to be sure, but it has a palpable effect on them. Neither parents nor educators entirely understand which schools and children are eligible for what or the actual meaning of dual school ratings under the state and federal systems. The confusion deepens in states (e.g., Michigan) where the penalties associated with failing to make AYP have led to an easing of academic standards or a softening of accountability systems.

NCLB's calendar is also unrealistic. Educationally, it makes sense to conduct student assessments near the end of a school year, so as to measure what pupils learned that year. Yet states that test in late spring are experiencing huge difficulty identifying failing schools before Labor Day, which causes havoc for the choice option and difficulty for the supplemental services option. While it's surely possible to score and report test results faster, it may also be that a one-year lag time needs to be built into the imposition of sanctions on schools.

The Problem with Self-Policing

An inherent difficulty in the design of NCLB's remedy provisions is their reliance on state and district educators to police themselves. In places blessed with gifted leadership and the courage to take tough steps, such federal stimuli can provide a useful spur to ongoing reform efforts. However, these aren't typically the states and districts that the law sought to target.

Districts unenthusiastic about the NCLB remedies can and do drag their feet in myriad ways: sending parents indecipherable letters, making a "needs improvement" label on a school sound like a badge of honor, providing unclear direction (and plenty of red tape) to parents regarding their options, moving reluctantly to contract with supplemental service providers, making little effort to find new space for public choice transfers, and erecting logistical roadblocks to outside providers of tutoring services. Meanwhile, many states are not identifying in a timely fashion the schools that are eligible, not providing effective guidance on fulfilling the mandates of the law, or not supporting the creation of new options.

It's hard to believe, therefore, that NCLB's choice provisions are on track to make a big difference in many troubled districts. Yet one ought not be too critical of the implementers. They are behaving in normal and predictable ways, and a free society gives them much leeway to continue doing precisely that. Organizations simply do not do things that they perceive as inimical to their own self-interest unless they are forced to--and the choice provisions of NCLB contain little by way of compulsion, coercion, or punishment (or, for that matter, inducement or reward). In that sense, NCLB is a law defined more by its aspiration than by its muscle.

Further, superintendents have raised two concerns that strike us as legitimate. First, no matter what Washington may say about not allowing space constraints to impede school choice, the fact is that buildings can accommodate only so many students. Moreover, it's a stark reality that in many districts with schools from which NCLB gives students the right to exit, there just aren't many high-performing schools with empty seats.

Second, with regard to supplemental services, a district may legitimately ask whether a provider's education program is reasonably aligned with the district's (or state's) course of study. Considering that the district schools attended by these students are still obliged to demonstrate AYP on state tests, if the provider of supplemental services is teaching something different, it may do neither district nor students much good.


What to do? Though experience will likely yield some improvement in the current functioning of NCLB-mandated public choice and supplemental services programs, we don't expect that time alone will bring significant gains. This situation is not due to any grand conspiracy of resistance or to ill intentions on the part of the law's authors. It's simply a consequence of the awkward compromises that shaped the statute's convoluted provisions. In short, if NCLB's authors are serious about using choice to give children access to more effective educational opportunities, they will need to modify this part of the law. We make no attempt here to spell out a detailed blueprint for revising it. Instead, we suggest 10 principles for lawmakers, addressing three major areas of concern: providing an effective system of choices; making choice work in concert with NCLB-style accountability; and ensuring that parents, educators, and public officials have the information they need to make sensible decisions.

Structuring the choice system. First, the same amount of attention needs to be paid to the supply of potential alternatives (i.e., effective schools and viable service providers) as to the demand-related rules by which students gain access to them. The supply of adequate schools into which eligible students can transfer needs to be expanded, whether by increasing district options, widening the availability of charter schooling, or putting greater emphasis on nondistrict options, such as interdistrict transfers and cyber schools. In particular, it will be imperative to offer incentives and support to entrepreneurs--within or beyond existing district borders--who wish to provide new classrooms and tutoring programs. Rural areas will need to rely more heavily on inventive options such as virtual schools, distance learning, schools- within-schools, and other learning modes that can mitigate the constraints imposed by geography.

Today, NCLB offers no incentives or recognition for procuring space or otherwise being proactive. This must change. For instance, schools that attract low-performing students might be given a per-pupil state "bonus." Or extra federal or state funds might be set aside to fund expansion of AYP-qualifying schools that are willing to grow.

Second, when a state or district is eager to use choice as a vehicle for school reform and can convincingly demonstrate this inclination by pointing to its own policies and programs, it should be given the flexibility to blend NCLB's provisions into its own. Some states and districts--such as Colorado, Florida, and San Diego--have made school choice a central tenet of their improvement efforts for years. Rather than being asked to alter these arrangements in deference to NCLB, these locales should be treated as beta sites and allowed to demonstrate new and effective approaches.

States have the ability to pursue such waivers from the U.S. Department of Education, and state superintendents should not be shy about doing so. Federal officials say that "EdFlex" states already have the authority to grant districts such waivers. A useful tack would be for the U.S Department of Education to encourage states to promote an "earn your freedom" approach, whereby districts that meet certain benchmarks in terms of choice provision or utilization are exempted from some regulations. Districts might, for example, install districtwide choice systems that favor students in troubled schools, cultivate a portfolio of charter schools, focus on interdistrict mobility, or develop a number of other creative approaches.

Third, school districts need to function either as providers of supplemental services or as regulators of other providers, not both. It's never a good idea to allow the fox to guard the hen house--however noble the fox's intentions. In districts that wish to provide services themselves, the state ought to be responsible for identifying another entity to screen, negotiate with, and oversee all local providers, including the school system. The likely result, which could be encouraged by federal seed funding, would be the emergence of organizations that could fill this referee-and-broker role. Some of these service coordinators might eventually operate in dozens or hundreds of districts, permitting them to build expertise in managing and evaluating providers, negotiating contracts with them, and ensuring that they deliver the promised services.

Harmonizing the accountability apparatus. Fourth, it may make sense to reverse the order in which supplemental services and public school choice must be provided. While many people supposed that districts would resist service provision more than school choice, in fact they seem more comfortable with the tutoring provision than with adopting public school choice. Moreover, it would seem to make sense to help children improve their performance within a school prior to offering them the chance to leave that school. We see a case for changing NCLB so that students would become eligible for supplemental services if their school misses AYP two years in a row and for public school choice if it misses it for the third consecutive year.

Fifth, the manner in which AYP is currently calculated works to punish principals who would otherwise embrace the public choice mandate. Schools that succeed in attracting a lot of transfer students will, by definition, receive an influx of pupils from low-performing schools. This is likely to pull down the performance of the receiving school, perhaps causing it to miss its AYP target. In other words, the law discourages rational principals from wanting to attract many students from weak schools via NCLB-mandated public choice.

It would make sense to amend the evaluation system so that schools are not penalized for enrolling these students. Perhaps all students in the school could be tested but AYP calculation would be based only on the performance of pupils who have been in attendance for at least two years. Or new arrivals could be judged on academic improvement, ensuring that students are adequately served by their receiving school without penalizing the school for having attracted low-performing students. In fact, this illustrates why it would be desirable to modify NCLB's AYP calculations more generally so as to attend to the rate at which students are gaining as well as their absolute level of performance.

Sixth, the failure of the law to distinguish between truly horrendous schools and those that barely miss AYP in one or two of the dozens of scrutinized student categories creates too many "failing" schools and too few "successful" schools. And this makes adequately performing schools nervous about small fluctuations in performance at particular grade levels or among specific pupil groups, resulting in little effort to make new seats available for transferring students. Refining the law so that the choice options are mandated only for pupils in schools that are clearly inadequate would help districts focus resources, ensure that fewer students seek transfers and that more schools can receive them, and reduce the management problems. Admittedly, this suggestion conflicts with the goals of some of NCLB's architects whose purpose for including choice provisions in the law was primarily to advance the school choice cause.

Seventh, states should revamp their testing and reporting cycles to identify targeted schools at least three months prior to the opening of the following school year. This would allow districts to prepare their choice and supplemental services programs and at the same time would help families to make intelligent decisions. No doubt this will mean reworking testing systems (and perhaps information technology systems) so that student performance can be analyzed and reported in a more timely fashion. Such revision should not entail moving assessments up into January or February, but rather retooling operations and investing in information technology so as to dramatically shorten the turnaround time for reporting.

Alternatively, NCLB might be amended so that the sanctions would lag a year behind the test results: a school's performance in 2003-04 would thus determine its students' choice options in 2005-06. A third approach is to hinge a school's status on a three-year aggregate or average performance, thus smoothing the year-to-year fluctuations that can be triggered by a wide array of phenomena, some of them purely statistical.

Informing parents and policy makers. Eighth, most parents of students in schools that fail to make AYP are unaware of the true status of their children's school. Survey data make this devastatingly clear.[7] This widespread public ignorance is due to confusion about accountability systems, the fact that parents have other matters on their minds, and the unenthusiastic efforts by many districts to inform parents of the status of their children's school.

States should take steps to prod districts to notify parents of their options early, often, and in plain, user-friendly terms. For example, the state could provide all districts with the opening paragraphs of letters to be used to notify parents, thus ensuring that the language of such letters is clear and to the point. However, it would still be a mistake to assume that troubled districts will aggressively encourage parents to transfer or to utilize nondistrict tutoring services. Hence we must look to states to provide clear models, ensure that districts take the requisite steps, and monitor the implementation of these sometimes-painful provisions.

Under NCLB, there is room for state education leaders to take a much more active role. For years, Title I has authorized state officials to withhold or reallocate funding from a district that does not comply with the law. Because the provision has been used so infrequently, its full potential remains unknown. It may, however, be possible for the state to redirect some of the federal money to provide information directly to parents in communities that are failing to adequately notify families of their options. While further federal guidance on this front would help, imaginative state officials have opportunities to redefine the permissible.

Ninth, there is an acute need for better federal data on how choice options are being utilized and how they are working. Today, nobody is responsible for compiling information on the number of students who are receiving supplemental services or on which providers are serving how many students. Nor is there any systematic data on how many districts are notifying families of their alternatives in a timely fashion, how many public school choices are being offered to eligible students, or how many students are exercising choice. Such information is essential. This strikes us as a worthy assignment for the National Center for Education Statistics.

Finally, if families are to make informed choices, it is imperative that they actually be provided with both information and options, whether or not the district wishes to cooperate. When a district wants no part of NCLB's mandated choice options, families must have a viable bypass mechanism whereby choice can be exercised notwithstanding district recalcitrance or incapacity. In such places, states should identify a private organization to ensure that families are adequately served. One possible model is the longstanding arrangement in several states (Missouri, for example) whereby a private organization provides Title I services to private school students who cannot be served directly by the state department or by a local district.

A Final Word

No Child Left Behind commits the nation to finally ensuring that all of its children are given an opportunity to pursue the American dream. In an effort to make the law more than a noble aspiration, lawmakers sought to impose sanctions on schools, districts, and states that fail to meet their obligations and to provide recourse for students trapped in ineffective schools. This was a laudable and courageous effort that policy makers and public officials at every level are now struggling, for the most part in good faith, to put into practice.

Yet good intentions are never enough. The Elementary and Secondary Education Act of 1965 was landmark legislation in its day, yet in the four decades since its passage we have seen little evidence that it has made a significant difference in the schooling of disadvantaged youngsters or in the performance of schools in poor communities. For NCLB to do better, it will not be enough to offer rousing speeches and calls to action. It is also necessary to reflect soberly on how the law is working.

The supplemental services and public school choice provisions are but a limited part of NCLB, yet they have a crucial role to play. Making these provisions work as intended will not ensure that NCLB succeeds across the board, but it will be a promising and important step.

Congress was wise to craft NCLB in a manner that sought to harness the power of choice, enterprise, and market forces. Parents can be an energetic source of education reform, and competition can be a powerful spur to educational improvement. But as we have seen in a variety of locales, choice-based school reform is no simple thing. Now Congress and the White House face a choice of their own: whether to learn the emerging lessons quickly and capitalize on them at an early stage or to close their eyes and insist that things will somehow work out. To us that seems like an easier decision than choosing between two schools.


1. Michael Kirst, "To Glimpse NCLB's Future, Look to the Past," Education Gadfly, January 2004, available at www.edexcellence.net/foundation/gadfly/issue.cfm?id=129#1610.

2. Cynthia G. Brown, Choosing Better Schools: A Report on Student Transfers Under the No Child Left Behind Act (Washington, D.C.: Citizens' Commission on Civil Rights, 2004); and Michael Casserly, "Choice and Supplemental Services in America's Great City Schools," in Frederick M. Hess and Chester E. Finn, Jr., eds., Leaving No Child Behind?: Options for Kids in Failing Schools (New York: Palgrave Macmillan, 2004), pp. 191-211.

3. Hess and Finn, op. cit.

4. Casserly, op.cit.

5. Brown, op.cit.

6. Robert Maranto and April Gresham Maranto, "Options for Low-Income Students: Evidence from the States," in Hess and Finn, pp. 63-88.

7. William Howell, "Fumbling for an Exit Key: Parents, Choice, and the Future of NCLB," in Hess and Finn, pp. 161-90.

Frederick M. Hess is director of education policy studies at the American Enterprise Institute,. Chester E. Finn Jr. is president of the Thomas B. Fordham Foundation. They are co-editors of Leaving No Child Behind? Options for Kids in Failing Schools, from which ithis article is adapted.

— Frederick M. Hess & Chester E. Finn, Jr.
Phi Delta Kappan


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