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Why many high-stakes testing foes see ‘modest’ progress in No Child Left Behind rewrite

Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar Alexander, R-Tenn., right, and the committee’s ranking member Sen. Patty Murray, D-Wash., were instrumental in the effort to rewrite No Child Left Behind law.  (AP Photo/Susan Walsh)

Now that U.S. lawmakers have unveiled final draft legislation rewriting the No Child Left Behind education law and are expected to vote on it soon, the question is how much will really change for public schools if it becomes law. The bill, titled the Every Student Succeeds Act, calls for a substantial shift of authority over education policy from the federal Education Department to states and districts, and explicitly limits the role the U.S. education secretary can play in local education decisions. As my colleague Emma Brown wrote here, it “attempts to thread the needle between conservatives who want to shrink the federal government’s footprint in education and civil rights advocates who worry that some states, left to their own devices, will obfuscate or ignore the poor performance of schools serving low-income and minority students.”

Here is an analysis of how the legislation, should it become the new education law of the land, will change testing policy. It was written by Monty Neill, executive director of the National Center for Fair and Open Testing, known as  FairTest, a nonprofit organization that works to end the misuses of standardized testing and to ensure that evaluation of students, educators and schools is  valid and educationally sound. Neill comes down on the side of those who think the new legislation is an improvement over the old law, but that more work would need to be done to create a more sensible accountability system for public schools.

By Monty Neill

Years overdue, Congress looks like it is about to vote on replacing the test-and-punish mandates of No Child Left Behind with a comprehensive overhaul of the federal Elementary and Secondary Education Act. The rewrite will also end the even more punitive requirements of NCLB waivers granted by the U.S. Department of Education.

From an assessment reform perspective, FairTest is convinced that the “Every Student Succeeds Act” (ESSA) now before the House and Senate, though far from perfect, improves on current testing policy. The bill significantly reduces federal accountability mandates and opens the door for states to overhaul their own assessment systems.

Failure to pass this bill in 2015 means NCLB and waivers will continue to wreak havoc for at least another several years.

The primary improvement would be in “accountability.” The unrealistic “Adequate Yearly Progress” annual test score gain requirement would be gone, as would be all the federally mandated punitive sanctions imposed on schools and teachers. States will be free to end much of the damage to educational quality and equity they built into their systems to comply with NCLB and waivers. Waivers to NCLB would end as of Aug. 1, 2016. (Other provisions of the bill would take effect over the coming summer and fall.)

Another modest win would be federal recognition of the right for parents to opt their children out of tests in states that allow it. While a 95 percent test-participation provision remains, states will decide what happens to schools that do not meet the threshold. (The feds had already backed down from enforcing this dictate.)

Unfortunately, the federal mandate would remain to test children in reading and math in Grades 3-8 and once in high school. States will also have to set long-term goals and use the test results to measure interim progress.

A dangerous requirement to rank schools continues. Worse, rankings must be based predominantly on student scores. High school rankings must include graduation rates, and all schools must incorporate English learners’ progress towards English proficiency. This data must be broken out by “subgroup” status. However, states must incorporate at least one additional indicator of school quality (such as school climate or student engagement) and can include multiple such indicators.

The bill says that test results, English Language Learner progress and graduation rates together must carry “much greater weight” in school rankings than the additional indicator(s). Congressional aides disagree among themselves as to what this means and whether the additional indicators could weigh up to 49 percent. The issue may only be settled via U.S. Department of Education regulations, an unfortunate prospect given the department’s history.

If the bill becomes law, states will have to identify the lowest-scoring 5 percent of their schools as well as high schools with graduation rates below two-thirds. This will almost entirely affect schools serving low-income children, disproportionately students of color or recent immigrants. States will decide how to intervene. The bill requires locally determined needs assessments (including identifying resources needed) and “evidence-based” interventions within a state-approved local plan and state progress monitoring. If a school or district does not make sufficient progress within four years, the state must provide technical assistance or intervene. In addition, an unspecified percentage of schools with highly unequal outcomes by race, class, language, or disability status will each have to develop improvement plans to address the gaps. Whether this process leads to genuine improvement or becomes a cover for test-driven sanctions will depend on the state and local political process.

Meanwhile, up to seven states will be able to fundamentally overhaul their assessments right away, with additional states allowed to join this pilot program after three years. States could design systems that rely primarily on local, teacher-developed performance assessments (as does the New York Performance Standards Consortium).  New Hampshire already has a waiver from NCLB to do that, starting with allowing pilot districts to administer the state test in only three grades. For all grades, the pilots employ a mix of state and local teacher designed performance tasks, an approach with great potential.

The new law also bars the U.S. Secretary of Education from intervening in most aspects of state standards, assessment, accountability and improvement. Given Secretary Arne Duncan’s history (and the track record in New York state of his soon-to-be acting successor, John King), that seems a good thing.

How states respond to the new assessment flexibility will depend in large part on the strength and growth of the testing resistance movement. This allows for assessment reform progress to be won state by state, though that is not optimal. In theory, Congress could have barred states from using test-based accountability and insisted on educator-led, bottom-up assessment. That option was not seriously considered by Congress or the Obama administration. The 2016 election cycle is highly unlikely to alter the inside-the-Beltway resistance to more fundamental reforms.

In the context of this political reality, the No Child Left Behind rewrite is positive because it substantially reduces federally mandated damage from testing overkill, though, by itself, does little to advance assessment reform or otherwise improve education. The alternative is worse: NCLB and waivers, with all their destructive consequences, would stay in place until some unknown, later date. That is why many assessment reformers, including FairTest, believe the legislation represents a modest step forward.

Nothing in the new federal legislation will stop the grassroots testing resistance and reform movement from continuing to grow and fight for more fundamental wins at state and local levels: less testing, an end to high stakes, and educationally sound assessment, as well as the financial and programmatic systems that will provide every child with a high-quality education.

The proposed new law will be due for its own reauthorization in 2020, after four years. If ESSA passes, it will mark the beginning of the next stage of the campaign. FairTest’s recommendation is to take what we have gained now as a basis for winning more in the near future.