ISSUE

The New York State Educational Conference Board (ECB), an alliance comprised of representatives from all of the state's major education advocacy groups, supports many of the fundamental principles embedded in the federal No Child Left Behind Act (NCLB). However there are a number of significant flaws with the law and we urge Congress to amend NCLB in order to ensure an equal opportunity for quality education for all children.

POSITION STATEMENT

ECB has identified six critical areas where the law needs to be amended.

1. Flawed Measurement System

The law should be amended so that schools and local education agencies (LEAs) are not misidentified because of inappropriate measurements of educational outcomes.

2. Participation Rate

The law requires that 95 percent of all students within a subgroup be tested. NCLB should be amended to establish a more realistic participation rate.

3. Special Education

The law should allow instructional level assessments for special education students who are functioning too high for the alternate assessment and have not progressed far enough in the general curriculum to be successful on the regular state assessments.

4. Increased Flexibility - Teacher Qualifications

NCLB should be amended to grant states and LEAs more flexibility in identifying "highly qualified" teachers, particularly for special education teachers, teachers of English language learners and teachers working in rural areas.

5. Increased Flexibility -Sanctions

NCLB should be amended to grant states and LEAs more flexibility when determining sanctions.

6. Adequate Funding

The federal government must provide adequate and sustained resources to meet mandates imposed under NCLB.

TALKING POINTS

Flawed measurement systems within NCLB

• While we acknowledge that schools and LEAs should be held accountable for the educational outcomes of students, we firmly believe that the measurements used to determine academic success or failure should accurately measure student progress and not penalize schools for negative outcomes resulting from events or individual circumstances beyond the control of teachers, administrators and boards of education.
• Without appropriate changes, flaws in the accountability system continue to erroneously identify some successful schools and LEAs as needing improvement, thus exposing them to sanctions mandated by Congress. This erodes the credibility of the entire federal effort to improve student achievement.
• A total of 503 schools in the state, including 345 in New York City, are on the State Education Department's 2004 list of schools receiving federal Title I funds that are in need of improvement.

Participation Rate

• The intent of requiring a 95 percent participation rate is to ensure that low achieving students are not excluded from testing by a school seeking to "game the system" in order to artificially inflate aggregate test scores. We disagree with the establishment of a 95 percent test participation limit, as we have seen no evidence that relevant attendance data was used to establish a valid attendance threshold. The arbitrary cut point of a 95 percent participation rate significantly exceeds the 92 percent average daily attendance of many, but not all New York schools. This year, 14 schools were identified as schools in need of improvement solely because 95% of students in one or more accountability groups were not tested.
• The law should be changed to replace the arbitrary 95 percent attendance rule with a more realistic target, such as each LEA's average daily attendance rate or another goal that is based upon national or state attendance averages. Another suggestion would be to utilize confidence intervals to project how the subgroup would have performed if fewer than ninety five percent of students are unavailable for assessments.
• While we acknowledge that the United States Department of Education has provided some flexibility regarding the participation rate, additional flexibility is needed.

Special Education

• While the law requires that all students must eventually reach proficiency on New York's challenging assessments, some students who are functioning too high for the alternate assessment and have not progressed far enough in the general curriculum, will not be able to reach proficiency. These students must have the option of participating in instructional level tests. Without this change, NCLB will continue to unfairly expose schools and LEAs to sanctions regardless of the efforts made to educate these children.
• The law should be amended to provide that the satisfactory performance of students with disabilities on alternate assessments, including instructional level tests, satisfies NCLB's proficiency requirements. In addition, there should be no cap on the number of students participating in alternative assessments that can be counted for accountability purposes. NCLB's focus on standardized testing is not compatible with students possessing unique needs.

Increased Flexibility - Teacher Qualifications

• NCLB's standards for highly qualified teachers are impractical for all special education teachers. Requiring special education teachers who provide instruction in self-contained settings to show competency in each subject they teach establishes a standard that few will be able to attain, especially in light of a serious shortage of special education professionals. New provisions should be added to allow for "collaboration or consultation teaching" at the middle and high school levels where special education teachers work in collaboration with a regular education teacher who is highly qualified in the subject matter being taught.
• The rule is also impractical in LEAs with small student populations where a teacher may be responsible for teaching more than one subject. Requiring teachers in rural schools to be certified in three or four content areas will further exacerbate the teaching shortages in these geographic areas.
• While we acknowledge that the United States Department of Education has provided some flexibility to allow teachers in rural areas to become "highly qualified", more flexibility is needed for teachers in non-rural districts, special education teachers, and teachers of English language learners.

Increased Flexibility - Sanctions

• Sanctions against schools and LEAs divert resources from schools most in need of financial help. NCLB requires LEAs and schools that have failed to make adequate yearly progress for two consecutive years to offer school choice. If adequate yearly progress is not made for three consecutive years, LEAs and schools must offer supplemental educational services paid for through Title I funds.
• While these requirements enable students to attend higher performing schools and receive additional instruction, they also have negative consequences. Expenditures for transportation and outside service providers reduce the ability of a school in need of improvement to provide additional tutoring and hire more teachers, thus placing students remaining in the low performing schools at an even greater risk of academic failure.
• Adequate and sustained resources should be provided to meet federal mandates and grant additional flexibility prior to levying sanctions. NCLB should be funded to the level promised when it was initially approved by Congress and signed in to law. In addition, the Individuals with Disabilities Education Act (I.D.E.A.) should be funded at levels promised in 1975 when the program was created and again in 1997 when reauthorized. If Congress fully funded these mandates, state and local resources could then be targeted toward high risk students in the form of additional tutors and reduced class sizes. More tutors and reduced class sizes would provide students with greater access to individualized instruction, improving educational outcomes.

Adequate Funding

• Congress is currently negotiating education spending levels for the fiscal year 2005 budget. Title I, the largest program within NCLB, is slated to receive a $1.1 billion funding increase, for a total of $13.4 billion. However, this falls far short of the $21.5 billion promised under federal law. Furthermore, although overall funding has increased, many school districts in New York State are subject to reductions in 2004-05 Title I funding. As a result of less federal funding, local school districts and taxpayers are forced to make up the difference by either raising taxes or reducing services to ensure that districts comply with the federal mandates.

November 2004