Can House, Senate find common ground to fix 'No Child Left Behind' law?

The 'No Child Left Behind' school testing law has been controversial since it first passed in 2001. Now, lawmakers are struggling to revise the law, but they seem to be on a collision course.

For the first time in years, the House and Senate have a shot at fixing “No Child Left Behind,” the law that required a testing regimen in schools nationwide – and that has been bitterly complained about ever since it passed in 2001.

Hope for revising the law is stirring on the Hill and off, despite the fact that both chambers appear to be on a collision course with different bills.

On Wednesday, the GOP-controlled House voted strictly along partisan lines to narrowly pass a conservative fix. Meanwhile, the Senate is debating a bipartisan bill that, busting through gridlock, passed unanimously out of committee in April.

“I think we’re going to have a law. Nobody’s gotten this far before,” says Kati Haycock, president of The Education Trust. The group works to close opportunity and achievement gaps for disadvantaged children – which was the intent of the law to begin with.

Not everyone shares her degree of optimism, especially considering the fierce lobbying that is pulling and tugging at both Republicans and Democrats. But even skeptics admit that several factors are at play that favor this attempt to reauthorize the law – which expired in 2007, but is still in effect – over previous efforts that failed.

The first is the bipartisan Senate bill, carefully crafted by Sens. Lamar Alexander (R) of Tennessee and Patty Murray (D) of Washington. Earlier this year Senator Alexander, chair of the committee that hatched the bill, abandoned his approach of writing a GOP version – his prerogative as chairman – and heeded his Democratic colleague’s urging to work with her on a draft that could serve as a starting point for the committee.

That was “good advice,” Senator Alexander commented back in April.

The two reached a consensus. They would continue the law’s measurements of students’ academic progress through required testing. But they would restore to states and communities the responsibility for deciding what to do about student achievement. That would relieve the anxiety that had generated even more tests to prepare for the required tests.

The Senate committee adopted their approach, with the understanding that the bill would be open to amendment once it hit the Senate floor – which is the process it’s going through now. It may well be that the Senate bill becomes the basis of whatever is eventually worked out in a conference between the two chambers.

A second favorable factor is pressure from education leaders in the states. It’s a “mishmash of a mess” out there, says Ms. Haycock.

Teachers, parents, and administrators rebelled against the explosion in testing and the accompanying requirement to make “adequate yearly progress.” When lawmakers failed to rewrite the law by 2011, the Obama administration allowed for “waivers” to get out of it – but only if states agreed to reforms and found other ways to hold schools accountable. Now 42 states have waivers.

“So many Americans, they’re struggling under the situation we have right now,” Rep. John Kline (R) of Minnesota, told reporters Wednesday. “You can’t go to any state in the country and say: ‘Boy don’t you just love that No Child Left Behind?’ No. No. Everybody understands it’s a horribly flawed law and it has to be fixed,” said Congressman Kline, who is shepherding the House bill.

The players, too, could prove the critical difference this time.

Senator Alexander – a former governor, Education secretary, and president of a university – is a “results” oriented senator, determined to see this through. His partner in this effort, Senator Murray, is a former pre-school teacher and a skilled negotiator, having hammered out a bipartisan budget agreement in 2013 that steered the country away from shutdown threats.

On the House side, Speaker John Boehner (R) of Ohio was there at the birth of No Child Left Behind, midwifing the law with the late Democratic Sen. Edward Kennedy of Massachusetts. He has left the repair job in the hands of Kline, chairman of the House Education and Workforce Committee. Like  Alexander, Kline, too, seems determined to replace No Child Left Behind with something better.

Kline came under fierce criticism from Democrats for not holding a single hearing on the bill (hearings were held in previous years), and for the party-line vote out of committee. Earlier this year, the bill was paused on the House floor when a more urgent matter intervened – and it also looked like it did not have the votes to pass.

The chairman used the pause to correct misconceptions about the bill and to drum up more conservative support. He expressed openness to amendments backed by conservative groups such as Heritage Action and Club for Growth. Several of them were proposed, but only one passed – a provision to allow parents to have their children opt out of the testing required under the House bill, which is called the Student Success Act. 

The House plan differs from the Senate version – it allows more state leeway and provides for federal dollars to “follow” low-income children to charter schools, which Democrats say hollows out the traditional public school system.

But a conservative bill was also the fastest and easiest way to simply get a bill through the House – and to set a GOP marker that will give Kline more leverage in conference negotiations. Still, Kline, who has been meeting regularly with Alexander over breakfast, insists that a conference between the bills’ leaders in both chambers will have to produce a bipartisan product.

“I told my colleagues, if we expect to really get rid of No Child Left Behind, that means what we pass has to be signed into law. And that means that it has to be bipartisan,” Kline says.

This, of course, is where the difficulty lies.

Conservative groups are pressuring lawmakers to take the “federal” out of any final bill while civil rights groups want it to force more accountability on states to actually improve conditions for disadvantaged students – not just measure how they’re doing. The White House shares that view. Teacher unions, though, are happy with the Senate bill as it is now, without added accountability.

Frederick Hess, director of education policy studies at the conservative American Enterprise Institute in Washington, points out that the more bipartisan the bill, the tougher the sell Speaker Boehner will have in the House.

“Most of the Republicans in the House caucus did not run for office to fine tune federal legislation on K-12 policy. They ran to reduce the role of Washington in states and communities,” he says.

The speaker, he explains, would have “enormous difficulty with his caucus” if he had to rely on strong Democratic backing for a bipartisan bill.

For that reason – and the sheer difficulty of bringing all sides together – Hess sees only a 15 or 20 percent chance of getting to the finish line. “It’s more likely than not that they will not be able to get a bill done, but there’s certainly a chance," he says.

Which is more than they’ve had in years past.