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Congress is very close to leaving ‘No Child Left Behind’ behind

The compromise bill taking shape restores a lot of power over school accountability to the states. But don’t expect testing to go anywhere.

No Child Left Behind has served as the foundation for federal K-12 education policy since George W. Bush signed it in 2002, but has come to be disliked by the right and left alike.
REUTERS/Kevin Lamarque

WASHINGTON — After months of public uncertainty, congressional leadership turmoil, high-profile retirements and hard work behind closed doors, Congress is today where few believed it would ever be: on the doorstep of passing a major K-12 education bill for the first time in 13 years.

On Tuesday, the House of Representatives voted to officially begin conference committee proceedings, and the bipartisan, bicameral group will meet to officially hammer out a compromise to revamp the No Child Left Behind education law. Top education policymakers, including House Education and the Workforce Committee Chair Rep. John Kline, will sit on the panel.

Over the summer, the House of Representatives and the Senate passed respective bills that would rewrite the law, which has served as the foundation for federal K-12 education policy since George W. Bush signed it in 2002.

The conference committee will begin discussions with much of the hardest work already completed: In the four months since each chamber passed its bill, the staffs of top education policymakers have been working out the blueprint of a potential compromise. With the details mostly cooked, it’s an opportunity for members of both parties to air out concerns and consider potential amendments.

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The effort wouldn’t have gotten this far unless there was a good chance of it arriving at President Barack Obama’s desk. But there are serious obstacles, particularly in the House, along with vocal stakeholders looking to leave their fingerprints on a bill that could define K-12 education policy for the next decade.

What will change?

The details of a potential House-Senate compromise have not been released, but based on the reporting of education-focused publication Ed Week, we know about its broad contours.

One of No Child Left Behind’s least popular elements was its establishment of a fairly rigorous testing regime — it required students to be assessed annually in grades three through eight and then once in high school. The new bill would keep that schedule in place, but states will have much more freedom to decide what those tests mean than they did in past years.

The new law is also likely to maintain provisions requiring schools and districts to share their assessment data with government officials. That data has been used to shed light on achievement gaps between wealthy, majority white schools and low-income, minority schools.

So what will change? The compromise law is likely to take aim at unrealistic achievement goals and devolve decision-making on what to do about the lowest-achieving students to the states.

Under NCLB, assessments were a key component of Adequate Yearly Progress, a major element of the law that was designed to set clear achievement goals for schools. AYP eventually became loathed by both left and right for placing too much emphasis on standardized testing, fostering unrealistic expectations, and punishing schools for not meeting those expectations. Schools that did not meet AYP were forced to provide students the option and resources to transfer to another school, for example, and schools that repeatedly did not meet AYP faced firings or even closure.

The provisions became so unworkable that, beginning in 2011, the Department of Education began waiving states from core components of NCLB — like the requirement that 100 percent of students be proficient in math and reading by 2014 — in exchange for agreeing to some conditions. Thirty-four states, including Minnesota, took advantage of the waivers, which were not explicitly built into NCLB.  The compromise is certain to strike the most problematic ideas behind AYP from K-12 education law.

A key sticking point of any education compromise will be accountability provisions — in other words, how officials respond to low-performing schools and students. NCLB gave the federal government a lot of power in determining state accountability systems — it included a provision saying states would not have made AYP, and faced the requisite penalties, if they didn’t assess 95 percent of subgroups such as English language learners and low income students. All state accountability plans were subject to final approval from the Department of Education.

This compromise bill is certain to pare down the department’s role, as well as that of the secretary of education. According to initial reports, the bill will require state governments to intervene in the lowest-performing 5 percent of schools and the schools with the lowest graduation rates. But unlike before, it will be almost entirely up to the states to decide how they want to intervene.

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Overall, the compromise may end up looking more like the Senate’s version of the bill, written by Sens. Lamar Alexander, R-Tennessee, and Patty Murray, D-Washington. That bill, which included language on accountability, is considered more moderate, and enjoyed strong bipartisan support.

Sen. Al Franken, a member of the Senate’s education panel, will join Kline on the conference committee. In a statement, Franken said people “across the country have been waiting for a long time for us to fix this law” and added he was glad to get “several key provisions included in a final agreement of the bill that will help improve education in Minnesota.”

The House’s version, sponsored and shepherded by Kline, is considered more aligned with conservative priorities, and contains a few wish-list items that are unlikely to make it into the conference bill, like so-called “Title I portability,” under which federal money for disadvantaged and underperforming groups goes to individual students, not schools. According to Ed Week, though, some policy pieces most desired by Kline — like more block granting of federal funds for math and science programs — will make it into the final bill.

Many hard-line Republicans didn’t consider Kline’s bill conservative enough, and it passed by only five votes in July.

Enough to like here

Observers and stakeholders from across the K-12 education world are hailing the progress of NCLB’s overhaul as a good thing, emphasizing that while not everyone will get what they want, it’ll be far better than the disjointed status quo, which virtually everyone dislikes.

In an interview, Kline told MinnPost that members of both parties are ready to put NCLB to bed.

“I don’t think there’s anybody alive who would argue this isn’t the largest intrusion of the federal government in K-12 education we’ve ever had,” he said. “There is virtually nobody who is happy with the status quo … we must move toward more local control and less federal government control.”

“Not everybody — perhaps not anybody — is going to be happy with everything that comes out of conference,” Kline added. “That’s how this works. It’s a give and take. We should have an Elementary and Secondary Education Act that replaces No Child Left Behind, empowers parents, returns local control, ends AYP … a lot of things we’ve been talking about on both sides will result from this process, and I feel pretty good about that.”

Without Title I portability and a handful of other items, the House and Senate bills aren’t terribly different and offer enough territory for compromise, according to Arnold Shober, an education policy expert at Wisconsin’s Lawrence University. Though he acknowledges the House bill is far more state- and local-oriented than the Senate bill, Shober says, “to the extent that the compromise bill preserves state language, it would be something most Republicans could be able to get behind.”

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Republicans want to be in a position to say, he added, that their plan “ensures local school boards and state elected officials keep the Department of Education away for the most part, but acknowledges that some states weren’t looking at low-performing schools without a federal threat. A lot of Republicans could swallow that language.”

If the bill proceeds, then, those most likely to be disappointed are those on the left who want a strong federal government role in setting accountability mechanisms, and conservatives who envision an even smaller, weaker Department of Education than the one put forth by the compromise.

A hasty retreat of the federal government from K-12 education could have worrisome consequences, according to Scott Sargrad, an education expert at the left-leaning Center for American Progress. “There’s still a really critical role that the federal government needs to play in enforcing the law and the civil rights of students. We don’t want to see a complete rollback of the federal role,” he said.

According to Sargrad, both the Senate and House bills didn’t do enough to ensure states and school districts address achievement for minorities, English language learners, low-income students, and other historically disadvantaged subgroups. “We hope to see that significantly strengthened,” he said. “It’s critically important that schools educate all students and if they persistently fail to do that, then districts and states should have a responsibility to step in.”

To Michael Petrilli, president of the right-leaning Fordham Institute education think tank, the compromise bill would put accountability fights where they belong — at the state level.

“The federal role in education has never been static. There had been a situation with clear overreach,” Petrilli says. The bill, he adds, strikes a “reasonable balance … [it] maintains the federal requirement that states continue to have accountability systems, but it also makes a very strong statement and says states are in charge, and shifts fights over accountability to state capitals.”

“I think it’s a good bill,” Petrilli says. “It’s the right bill at the right time.”

Not law yet

Whether members of Congress agree it’s the right bill remains to be seen. As a compromise bill, it gives room for members of both parties to take serious objection to what’s put before them. The drama is likely to center in the House of Representatives: 27 House conservatives voted against Kline’s initial bill, and more are likely to join them — perhaps many more. Not a single Democrat voted for that bill, but a compromise bill could pick up a large majority of their caucus.

This could be a crucial early test for the newly minted Speaker Paul Ryan. According to Petrilli, the fate of the bill depends on how badly Ryan and GOP leadership “want to demonstrate they can get things done,” even if it means risking a standoff with hard-liners.

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“There’s certainly an argument to be made based on politics and policy that it’d help Republicans to have some accomplishments and this is low-hanging fruit … they can put a stake through the heart of No Child Left Behind,” he says. “It doesn’t go as far as most conservative members would like, but that’s how our democracy works.”

Whether Congress finally puts NCLB to rest may depend on whether Ryan abides by the so-called Hastert Rule, under which Republican speakers do not bring legislation to the floor unless it has the support of the majority of the party. A compromise would almost certainly pass the House with Democrats and moderate Republicans joining to vote yes — whether it can get a majority of the GOP is unclear. Ryan has previously said he would uphold the rule.

For his part, Kline says efforts are shaping up and that he’s confident the compromise has a path forward. “We will take this framework, which is a preliminary agreement, and move into conference, which will be an open process which will allow conferees their chance to speak up, so we’ll see what comes out. Any discussions that we’ve had have been serious and productive,” he said.

The political will exists for most House Republicans to push out the bill, according to Kris Amundson, executive director of the National Association of State Boards of Education. “Nobody is hearing from back home, ‘we love No Child Left Behind, don’t change a word,’ ” Amundson says. “Members of Congress are very responsive to what they hear from back home, and they have been hearing for several years that No Child Left Behind is past its sell-by date.”

“That’s why I say there is a path out of the House,” she says. “If the Speaker invokes the Hastert Rule, I think it’s dicier.”

Of one thing, however, Amundson is sure: If the compromise becomes law, John Kline is to thank. “He’s clearly spending his political capital, so I give him tremendous credit for that. … If it gets over the finish line, it’ll be because of him.”