House approves overhaul of No Child Left Behind: What would new law look like?

In the closest Congress has come to reauthorization, the House approved an overhaul of No Child Left Behind Wednesday, and the Senate is debating a bipartisan version this week. But many hurdles remain.

Most people agree that No Child Left Behind has had plenty of flaws in practice and has long passed its usefulness, now requiring a complicated system of waivers so that states can bypass requirements. Among other things, critics claim that it’s led to too much testing, created incentives for states and districts to lower standards, and forced "fixes" for "failing" schools that often created turmoil while solving little.

But it's much harder to get people to agree on what a new law should look like.

This week, the Senate is debating its version of a rewrite of the law, now dubbed the Every Child Achieves Act. And the House approved its own version on Wednesday. This is the closest Congress has gotten to a reauthorization of the Elementary and Secondary Education Act since No Child Left Behind (NCLB) was passed in 2001.

And yet, there are numerous hurdles to actually getting a bill that passes muster in both chambers and that President Obama will sign.

Many observers worry that in its eagerness to dial back overly prescriptive federal accountability measures, Congress is swinging the pendulum back too far – retaining the yearly testing at the heart of NCLB, but losing any sort of teeth to push schools to improve. They fear that such a scenario could – in many states, at least – hurt the very disadvantaged students the law is supposed to help.

"I’m very concerned that we might overcorrect," says Chad Aldeman, an associate partner at Bellwether Education Partners, a think tank and education advising nonprofit. "NCLB was very prescriptive on the rules it used to require states to set goals for performance and what happened if schools didn’t meet those goals. But I’m worried that we’ll react to that in such a way that we’ll have very few rules."

The end result, Mr. Aldeman says, could be a civil rights bill that sends out billions in federal dollars with no oversight to ensure that the money is being used effectively. Last month, a coalition of 36 civil rights groups published a letter criticizing the Senate bill for the same reasons, asking for more accountability and a more meaningful federal role.

But there are plenty of others with a different view. These include teachers unions, parents, and activists on the left who worry about the educational downsides of high-stakes accountability measures and testing, along with politicians on the right who want to vastly diminish the federal footprint in education policy. Such groups think the federal government has had far too much say in how schools are run, with few good outcomes. Giving flexibility and decisionmaking back to the states is long overdue, they argue.

The bipartisan Senate bill is an attempt to dial back that federal role on accountability while keeping the data and transparency that many education experts see as NCLB's biggest achievement. Yearly testing and reporting of scores by subgroups of students would still occur (despite objections from some politicians and educators who would like to see less testing), but states could come up with their own accountability plans rather than conform to the very specific measures NCLB had in place.

"This bill is a strong step in the right direction to finally fixing No Child Left Behind and making sure all students have access to a high-quality public education," said Sen. Patty Murray (D) of Washington, who cowrote the bill with Sen. Lamar Alexander (R) of Tennessee. "The bill eliminates the one-size-fits-all provisions of No Child Left Behind that have been so damaging for schools and districts."

Indeed, some critics of NCLB have said the law was too loose on the standards – creating incentives for many states to try to game the system by lowering the standards they used – while it was too "tight," or prescriptive, on the accountability measures. Under that theory, the Senate legislation might be a shift toward a better balance, they say.

"The Feds can force states to do things, but they can’t force them to do them well," says Patrick McGuinn, a political scientist at Drew University in Madison, N.J.

The thinking, he says, is that maybe by emphasizing transparency over scores, and having higher standards and assessments that span states (through Common Core and aligned tests), there will be internal pressure within states to create effective accountability measures. States could also change how they measure schools – moving away from clunky systems that put all the weight on tests toward more creative systems that use multiple measures or help schools in innovative ways.

Still, Professor McGuinn says, the reality is that a few states may do this well, while many others would not. Moreover, the Senate bill takes away virtually any federal say in whether a state's accountability measures are good enough, and it doesn't require states to do more than simply identify low-performing schools – and it also explicitly prohibits the federal government from incentivizing or endorsing any set of standards.

Combine that with the pushback against Common Core and the growing parental movement to opt students out of testing, and McGuinn worries that the transparency and test scores parts of the legislation could be weakened just as much as the accountability part – with the end result being a big loss for educational equity and disadvantaged kids.

Despite the political will to get a new law passed, there are still some big roadblocks. The Republican-supported House bill would let federal Title I dollars follow students to the school of their choice, a big sticking point for Democrats and an element that could make everything fall apart. There are also disagreements about how the formulas determining the amount of funding each state gets should be determined and whether a new preschool program (currently in the Senate bill) should be included.

The Obama administration has threatened to veto the House bill, and it said this week that it can't support either bill in its current form, although it hasn't actually threatened to veto the Senate version. However, a push to amend the Senate bill this week to make accountability measures stronger, as the administration would like, would cause Republican support to drop away.

But despite the massive changes to NCLB being considered, and the vehemency with which different factions argue about the proper role of the federal government or the merits of testing, the current debate also shows just how far-reaching the legacy of NCLB has been.

When President Clinton proposed in 1994 that states should be required to test all students three times over the course of their school career and report the results with no consequences, he got shouted down by education schools and teachers unions, remembers Frederick Hess, director of education policy studies at the American Enterprise Institute in Washington. Now, increased testing, transparency, and data about subgroups of students are taken as a matter of course.

"In a lot of ways, we'll have taken the long road home," says Mr. Hess. "We will have held onto a huge victory of NCLB, which was transparency. Every school district in America, every school, every newspaper, will still be talking about how is this population of kids doing against the state standards. That is profoundly important. What's changed is there will no longer be that monomaniacal pressure to get each of the subgroups over the reading and math proficiency bar."