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States leave No Child law behind

The law is meant to hold schools accountable, but most states are upset that they aren't being given money promised to help.

By ANITA KUMAR, Times Staff Writer
Published September 4, 2005

WASHINGTON - It's not unusual for states to chafe at federal rules. But the state revolt against the federal law that inundated America's classrooms with standardized tests is unprecedented.

Forty-seven states are questioning, opposing or outright rebelling against the most sweeping education reform in a generation.

In Utah, lawmakers ordered that state policy take precedence over federal policy. In Texas, educators were fined for failing to test students with learning disabilities as federal rules require. In Colorado, the state gave its school districts permission to opt out of the law.

Now Connecticut has sued the federal government, and more states are contemplating the same.

"With any piece of federal legislation, there is always a pushback from states," said David Shreve, a lobbyist with the National Conference of State Legislatures. "But this is unique and unprecedented and deep, very deep."

* * *

In the beginning - 2001 - Republicans and Democrats alike couldn't get behind No Child Left Behind fast enough.

Enacted the following year, the law became the centerpiece of President Bush's education policy and the crowning domestic achievement of his first term.

But with each passing year, the discontent has festered and spread.

States and local school districts generally agree with the 1,000-page law's ambitious goals - hold schools more accountable and ensure achievement for all students - but not with the way it forces them to accomplish that.

It requires that students take standardized reading and math tests. If students do not perform well enough, schools must provide transfers and tutors. If enough progress still is not made, the law requires costly remedies such as firing staff or extending the school year.

"People in good faith believed this was going to hold states and districts accountable," said Karen Symms Gallagher, dean of education at the University of Southern California.

By some measures, it has: According to the Center on Education Policy, nearly three-quarters of the states and school districts reported improvements on the mandated tests.

But the states complain about money - the lack of it. It costs millions to test every student, every year, in grades 3-8 and once in high school, plus pay for penalties.

In four years of funding since Congress passed the law, it has budgeted $27-billion less than needed; an additional $13-billion shortfall is expected next year.

Connecticut, which filed its lawsuit last month, faces a $40-million shortfall.

"The goals of the No Child Left Behind Act are laudable . . . but the federal government had failed in implementing them," said Richard Blumenthal, the state's attorney general. "Unfunded mandates are all too common. These specific unfunded mandates are unlawful."

Another big complaint is how rigid the federal government is about the rules. More than 40 states have asked the U.S. Education Department to ease up on everything from teacher certification to rules for testing special education students.

State lawmakers say it's unconstitutional that No Child Left Behind gave the federal government unprecedented influence over schools, traditionally the responsibility of states and local school districts.

Utah passed a law giving its rules priority over No Child Left Behind, despite the government's threat to withhold $76-million in federal funds.

"This is not a federal issue," said Margaret Dayton, the Republican state representative who sponsored Utah's bill. "There is no part of the Constitution that allows for the federal government to delve into education."

Examples abound of states revolting against the federal government, says University of Florida political science professor Dan Smith, including the disposal of nuclear waste at Yucca Mountain in Nevada, environmental protection rulings and gun control legislation in the Brady Bill. But this opposition, he says, is different because it is so widespread.

"No Child Left Behind is one of the most ambitious federal interventions into K-12 schools in American history," said Brian Gill, an education researcher at the nonprofit RAND Corp. "It's not surprising it would inspire such opposition."

* * *

That opposition has grown with each year, as the law resulted in more penalties and more costs. Republicans and Democrats are again on the same page - some of whom originally supported the bill.

Republican opposition generally focuses on the federal intrusion into state's rights; Democrats generally focus on the insufficient funding.

Democratic Sen. Edward Kennedy, a chief sponsor of the law, is one of the biggest critics of how it has been implemented.

"Because of the underfunding, we are leaving behind 3-million school children who deserve the benefit of these reforms," he said last week. "Our children and our future demand that we take action and provide the much needed funds."

The Civil Society Institute, a nonprofit think tank, surveyed all 50 states to compile its report, NCLB Left Behind: Understanding the Growing Grassroots Rebellion Against a Controversial Law. It found that since the law was implemented, 21 states considered bills critical of it, most in the past year.

Despite intense White House lobbying - senior adviser Karl Rove personally called state legislators - seven states passed resolutions through both their legislative chambers.

Fifteen states, including Bush's home state of Texas, considered bills to opt out of No Child Left Behind, and four states considered bills to prohibit state money from being used to implement the federal law.

Only three states have not taken any steps to challenge the law.

Florida, which received $313-million less than expected last year, has been uncharacteristically quiet, choosing to publicly praise the law's goals while working behind the scenes to tweak it. Most attribute that to having a Republican Legislature and the president's brother as governor.

The federal law is a confusing mess in Florida, where it conflicts with Gov. Bush's A-plus plan. Two-thirds of Florida schools earned A's or B's under the state grading system last year, but more than 60 percent failed to meet federal standards.

U.S. Education Secretary Margaret Spellings has made it one of her jobs to deflect some of the protests around the nation.

"No Child Left Behind is good policy and good politics," she told a group of state legislators last month. "We campaigned for a new solution - bringing high standards and accountability into our schools, and disaggregating data so that parents, teachers and schools would know how every child was doing in school."

U.S. Education Department spokesman Chad Colby attributed much of the opposition to special interest groups, such as the National Education Association, the country's largest teacher's union, which filed a lawsuit. Colby said many school districts and state officials support the law.

"All 50 states are complying and all 50 states are working to achievement," he said. "That's what happening. Those are the facts."

But almost all states have asked the U.S. Education Department for flexibility. For the first time, the federal government is granting some.

In May, Spellings announced that Florida would be the first state to receive some concessions, shifting the state's definition of subgroups and altering the timetable by which students must meet proficiency standards.

But the state found out in August it did not get the break it wanted for schools that perform well under state but not federal guidelines.

Many educators hold out little hope that the president or Congress will undo a law that started with such overwhelming, bipartisan support. "I will do everything I can to prevent people from unwinding it,' Bush said this spring.

Gallagher said the federal government eventually will deal with the problem, not because of the complaints, but because the sheer number of schools needing improvement will force Congress' hand.

Jack Jennings, president of the Center on Education Policy, has a prediction for 2007, when the law comes up for renewal.

"Expect a hell of a brawl."

Times researcher Angie Drobnic Holan contributed to this report. Anita Kumar can be reached at or 202-463-0576

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