Legal Clips, [April 2008]The Bush administration sought to bolster its signature education law Tuesday, announcing new rules designed to address the nation's dropout problem and ensure close attention is paid to the achievement of minority students. Education Secretary Margaret Spellings announced that among the proposed changes being made to the No Child Left Behind (NCLB) law is a new requirement that by the 2012-13 school year, all states would have to calculate their graduation rates in a uniform way. States will be told to count graduates, in most cases, as students who leave on time and with a regular degree. Research indicates students who take extra time or get alternatives to diplomas, such as a GED, generally don't do as well in college or the work force. While states will no longer be able to use their own methods for calculating grad rates, they will still be able set their own goals for getting more students to graduate. Critics say that allows states to set weak improvement goals. The administration's proposed regulations would require schools to be judged not only on how the overall student body does but also on the percentage of minority students who graduate. Critics of the six-year-old education law have complained that judging schools on test scores but not, to the same degree, on graduation rates has created an incentive for schools to push weak students out or into non-diploma tracks.
Lawmakers recently tried but were unable to pass an updated version of the law due to disagreements over how to judge schools and teachers, among other things. Without a renewal, the existing law stands. Spellings has been taking steps in recent months to make changes from her perch. The proposed regulations amount to the most comprehensive set of administrative changes she has sought so far. They call for a federal review of every state policy regarding the exclusion of test scores of students in racial groups deemed too small to be statistically significant or so small that student privacy could be jeopardized. Critics say too many kids' scores are being left aside under these policies. The regulations also call for school districts to demonstrate that they are doing all they can to notify parents of low-income students in struggling schools that free tutoring is available. If the districts fail to do that, their ability to spend federal funds could be limited under the proposal. The department estimates only 14% of eligible students receive tutoring available to them. An even smaller percentage of kids who are allowed to transfer to higher-performing schools make that switch, in part because they aren't always informed of vacancies on time. The regulations require schools to publicize open spots at least 14 days before school starts. The administration's proposal also would tighten the rules around the corrective steps schools must take once they've failed to hit progress goals for many consecutive years.
The administration is seeking public comments before finalizing the regulations in the fall. Regulations can be overturned by a new administration. Spellings said that's unlikely in this case, because the rules she is proposing have widespread support. She said she hoped the ideas would help shape the legislative debate on Capitol Hill whenever the law is revisited there. Sen. Edward Kennedy, D-Mass., who chairs the Senate education committee, said the regulations "include important improvements for implementing No Child Left Behind." Rep. George Miller, D-Calif., who chairs the House education committee, said the new rules fall short of what's needed. He said the Bush administration didn't try hard enough to get a revised law through Congress.
Source: Associated Press, 4/22/08, Nancy Zuckerbrod
[Editor’s Note: Additional details, summaries, and the full text of the regulations are on the department’s website, below. Background on the proposals relating to graduation rates, supplemental educational services (SES), and public school choice is at the NSBA links. Among other changes, the regulations also would set new public reporting requirements, including that NAEP testing data be included in state and local report cards; set criteria states must meet in order to implement “growth models” by incorporating individual student academic progress into their definitions of adequate yearly progress (AYP); specify that a district may base school improvement status on whether a school missed AYP because it did not meet goals in the same subject or academic indicator for two consecutive years, but that it may not limit identification for improvement to those schools that missed AYP only because they did not meet goals in the same subject or academic indicator for the same student subgroup for two consecutive years; and require a district, before reallocating unused funds from choice-related transportation and SES to other purposes, to satisfy the state about its outreach efforts to the community and its granting SES providers the same access to school facilities as is afforded other groups. Comments are due June 23, 2008.
While most groups, including NSBA, have welcomed some administrative changes to NCLB and opposed others, a longstanding question has been at what point the administration’s proclivity for NCLB lawmaking by regulation, nonregulatory guidance, and less formal or less transparent methods may exceed its legal authority. In Justice Antonin Scalia’s memorable metaphor from Alexander v. Sandoval, 532 U.S. 275, 291 (2001), “Agencies may play the sorcerer's apprentice but not the sorcerer himself.” A California lawsuit went to trial this week on this very point, challenging the administration’s regulations allowing a teacher intern who is progressing toward certification to be counted as “highly qualified” under NCLB. Background on that case, Renee v. Spellings, an account of the opening of the trial, and a press release by the organization that brought the suit, Public Advocates, are below. The last link is to a report on the same group’s legal complaints against Sacramento City Unified School District over teacher qualifications at a high school.]
ED information on proposed regulations
NSBA School Law pages on graduation rate formula
NSBA School Law pages on SES and school choice guidance
NSBA School Law pages on Renee v. Spellings
Contra Costa Times, 4/23/08, By Shirley Dang
Public Advocates press release on Renee v. Spellings
Sacramento Bee, 4/23/08, By Kim Minugh