The Department of Education yesterday issued final regulations for the No Child Left Behind education law, but representatives of state school systems said the rules that will govern enforcement of the federal initiative still may result in far too many of the nation's public schools designated as failures.
State school boards and others have been lobbying federal education officials to build new flexibility into the regulations that accompany the law, which has been alternately hailed for setting a long-overdue national educational standard and criticized as the biggest federal intrusion ever into local education.
Critics said the new regulations do not significantly loosen provisions that require states to show consistent improvement in student achievement across racial, ethnic and socioeconomic categories. The law requires that all students make steady progress on state standardized reading and math tests until they reach proficiency. Schools have 12 years to bring all students up to the proficient level.
"There is a concern among states that this is really setting up a system where the states are going to be hard pressed not to fail, at least at the beginning of the law's implementation," said Kristen Tosh Cowan, a lawyer with Brustein and Manasevit, a Washington firm that represents scores of state education departments and large local school systems.
Cowan said the biggest concern among her clients is that student subgroups, including disabled students and those who speak English as a second language, may not be able to meet the initial proficiency goals set out in the law.
"I don't think there is enough flexibility there," said Reg Weaver, president of the National Education Association, the nation's largest teachers union. "This is something that will need monitoring and revising."
Schools that do not show steady progress toward the proficiency goals face serious consequences, including requirements that they offer students tutoring by private firms or allow them to attend other public schools. If schools fail to improve after several years, they can eventually be closed and reopened with new missions and staffs, or converted into charter schools.
Education officials said that demanding steady, across-the-board improvement in standardized test scores is the only way to preserve the intent of the measure, which President Bush signed into law in January.
"We know the goal of achieving genuine education reform will only be met with the insight gleaned from measurement of student and school progress toward high academic standards," Education Secretary Roderick R. Paige said in a statement. "Only if we hold schools and school districts accountable for the improved achievement of all students will we meet the goal of leaving no child behind."
The new regulations cover a wide range of provisions included in the law, including rules that govern how school systems must provide school choice opportunities to students who attend failing schools. The regulations make clear that private tutors must accommodate disabled students and students with limited English skills.
A provision that will allow states to report dropout rates as gross averages, rather than by racial and socioeconomic subgroups, was criticized by Rep. George Miller (Calif.), the senior Democrat on the House Education and Workforce Committee. He said that system will "mask" dropout rates of black and Hispanic students.
The No Child Left Behind Act was passed by Congress last year with bipartisan support, but that initial comity has deteriorated into a volley of charges and countercharges between Democrats and Republicans over the amount of money the federal government should invest to support school reform.
The bill was accompanied by a significant increase in federal education funding, but the proposed appropriation for the current federal fiscal year contemplates much smaller increases. Many Democrats have complained that the Bush administration is not living up to its commitment to provide new resources to help schools improve.