Expansion of Federal Power in American Education:

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F EDERAL E NFORCEMENT D URING Y EAR O NE ........................................................................... 21 FEDERAL-STATE RELATIONS: CONFLICT OR COOPERATION?............................ 25 P ROFESSIONAL C OMPLIANCE AND S TATE C APACITY TO M EET THE N EW R EQUIREMENTS ........ 25 I MPLEMENTATION C HALLENGES D URING Y EAR O NE ..................................................................... 30 S TATE F ISCAL C ONSTRAINTS ..................................................................................................... 33 G ROWING O PPOSITION W ITHIN THE S TATES .............................................................................. 37 CONCLUSIONS AND IMPLICATIONS................................................................................ 41 APPENDIX....................................................................................................................... ........... 43 REFERENCES..................................................................................................................... ....... 45 1 LIST OF TABLES Table 1: Summary of Policy Changes in the 2001 ESEA Reauthorization of Title I....................13 Table 2: Implications of NCLB for Federalism and the Governance of Education.....................14 Table 3: Status of States 9 Compliance with 1994 IASA Title I Requirements, March 2003.......18 Table 4: Number and Percent of States with Fully Approved Accountability Plans Based on Compliance with 1994 IASA, June 2003 ..........................................................................22 Table 5: Summary of Required Elements for State Accountability System (n=41): Number and Percent of States Working to Formulate a Policy (W); Proposed Policy (P); and Final Policy (F) .................................................................................................................... .......25 Table 6: Comparison of All States (n-41), IASA Compliant States (n=18), and Non-IASA Compliant States (n=23): Percent Working to Formulate a Policy (W); Proposed Policy (P); and Final Policy (F) ....................................................................................................2 6 Table 7: Title I Grants to Local Education Agencies (LEAs) and Total Elementary and Secondary Education Appropriations, FY 1998 3 2004....................................................30 LIST OF FIGURES Figure 1: State Accountability Plans, Average Percentages for Each Principle...........................24 2 3 ACKNOWLEDGMENTS The authors of this report are grateful to numerous individuals for their assistance during the course of the study. Christopher Edley, Jr. and Gary Orfield provided leadership, counsel, and feedback on successive drafts of this report. We also thank many of our colleagues at The Civil Rights Project at Harvard University for their invaluable assistance in the production of the final report. Special thanks go to Marilyn Byrne, Laurent Heller, Cathy Horn, Al Kauffman, Michal Kurlaender, Lori Kelley, Chungmei Lee, Dan Losen, Patricia Marin, Jerry Monde, and Christina Safiya Tobias-Nahi. Several members of our NCLB Academic Advisory Board provided enormously useful comments, including Kenneth Wong at Vanderbilt University and John Witte at the University of Wisconsin-Madison. Many graduate students provided able research assistance, including Mei Mei Peng, Khadijah Salaam, and Kate Sobel. An earlier version of this paper was presented at the 2003 annual meeting of the American Education Research Association, Chicago, IL. The support of the National Education Association (NEA), the Carnegie Corporation of New York and the Charles Stewart Mott Foundation are gratefully acknowledged. However, the views and opinions expressed in this report are solely those of the authors. FOREWORD: FEDERAL STATE RELATIONSHIPS Gary Orfield The federal role in American education has been an issue of great sensitivity in American politics. Traditionally, policymakers have supported state and local control rather than federal directives and federal education legislation has normally contained strong prohibitions against federal control of education. It was largely because of concern about a potential abuse of federal power that the U.S. lagged generations behind other nations in the development of a national department of education. As is often true in the American system, concerns about liberty and local autonomy far outweighed concerns about policy objectives. Part of the vigorous defense of local autonomy historically, of course, was rooted in the struggle to preserve local traditions of minority group separation and subordination. Fear of racial change, concern about subsidies to religious groups, and general support for state and local control of the schools delayed federal education legislation for many years after national surveys showed public support. Normally conservatives were the most suspicious about federal power. They constantly warned against the danger of federal control of the schools when liberals and moderates tried to create federal programs that supported the growth and improvement of American schools or that challenged state and local practices of exclusion and discrimination. Others have been less opposed to a federal role in education. American civil rights supporters and researchers supported an extension of federal power to deal with local discrimination and exclusion from educational opportunity. Public education supporters have for many decades favored a larger federal role in equalizing funding of schools and providing programs for poor children in schools. This was the central impulse behind the creation of the Elementary and Secondary Education Act in 1965, which led to an important federal role in public education. The No Child Left Behind Act is a startling departure from this history, both in terms of its requirements and in terms of its sponsors. It requires specific large changes in the basic assessment systems of states, sets requirements for education progress in two specific subjects only, contains unusual and large sanctions, and commands many forms of specific state action. It clearly moves to the very heart of the educational process. When the fate of schools and faculties rests solely on achieving a nationally specified rate of progress on two tests, those tests will drive curriculum and instruction in the schools that are clearly at risk, and, in this way, the federal mandates will control the center of the educational process. The implementation of the law proceeded with very little time for states to prepare for some of the provisions, without the resources that school districts believed they would receive at a time of serious cutbacks in state and local funding, and without the normal diplomacy of federal-state relationships. This has produced a unique combination of critics, ranging across ideological and political spectrums. From a civil rights perspective there are parts of this law that are clearly positive, at least in principle 4the insistence on accountability for racial and ethnic minorities, the policies for more 4 qualified teachers, the requirement to offer choices to students in failing schools, and the aspirations for substantial progress for all groups of students. However, testing mandates are central to NCLB and there is a long history of serious civil rights concerns about the racial impacts of inappropriate use of standardized tests. The law is particularly important because many of the high poverty schools that Title I programs target are minority schools with many minority teachers and administrators, often working inside overwhelmingly minority districts. In these schools, which deal with the consequences of very serious social and economic problems in their communities, it is extremely important that reforms not make things worse. Many of these schools and teachers have been subjected to a long succession of reforms imposed from the outside that have failed. The worst kind of reform would further demoralize already overburdened staffs, undermine the kind of reforms that produce lasting change, drive qualified teachers and administrators out of the most needy schools, and take resources from them when they cannot meet standards that no school district has ever met. Critics, including some leading researchers, believe that an ill-considered enforcement of some NCLB requirements will have those consequences. Moreover, many educational leaders in poor urban and rural schools are concerned that the law oversimplifies the problems of educational improvement, underestimates the necessary preconditions and time required for serious reform, provides no reliable increase in resources, contains the wrong mix of sanctions and incentives, and relies on the wrong theory about how educational reforms are actually implemented. These doubts and the virtual exclusion of educational leaders from the legislative drafting process mean that the law is up against serious resistance on many levels within the professional community. The conflict, which has erupted even in the early stages of enforcing the law, suggests that a strong reaction to the change in educational federalism is developing among state and local officials and educators. The U.S. has fifty different state systems of education and there are enormous variations in size, expertise, capacity, beliefs, and traditions of state-local relationships. States are at the center of the history and finance of public education in the U.S. and they have always been accorded wide autonomy. NCLB curtails this autonomy. It creates many new requirements that states must meet and assumes that state agencies have the capacity, skill, and desire to intervene very powerfully in local school districts. Though we have a generation of experience with state interventions in failing schools, state powers have generally been used sparingly and with only limited impact. The new law will require drastic state interventions on a huge scale in the near future. State officials are not used to federal mandates that change their basic functions, particularly mandates they believe ignore regional differences and undermine state policy priorities. Although opinion is certainly divided, when many state and local officials, experts, and journalists are skeptical or opposed to a new policy, that disquiet quickly enters national politics in Congress and elsewhere. Because the U.S. political system is one dominated by officials elected from states and localities, there is normally a strong reassertion of state and local power when federal officials try to intervene too directly. Since state and local constituencies elect all officials except the President and Vice President, the national parties have very little sway over Senators or Representatives when those officials believe that local voters and leaders are angry 5 about a federal policy. During the 1960s, a very strong counter-pressure against the expansion of direct federal intervention in the schools rapidly emerged in Congress, even under Lyndon Johnson, an extremely powerful President at that time. It is wholly predictable that the current federal directives will be the center of ongoing controversy. The two most important changes in the history of federal education policy were the l965 Elementary and Secondary Education Act and the 2001 No Child Left Behind Act. Both expanded federal power and promised large new resources. The 1965 law required no particular educational approaches but it and the related 1964 Civil Rights Act forced opening the schools to previously excluded groups of students and forbade discrimination. This was a huge change in traditional relationships and was very strongly opposed by conservatives whose basic goals were state and local autonomy and vouchers or other forms of market-like competition. In the 2000 election the Republicans won the presidency with a candidate who ran in good measure on the success of education reforms in Texas, reforms which he promised to implement on the national level. Bush 9s reforms involved central educational functions like assessment and sanctions, something very unusual in federal grant programs, which tend to offer incentives to try new things rather than sanctions. Another highly unusual factor in the No Child Left Behind legislation was that school officials and experts on educational reform were largely excluded from the process of designing the law. Traditionally educational leaders have been highly influential at both the federal and state level in making education policy. Beginning in the l980s, conservatives developed more and more biting critiques of the public schools and their leaders and supporters. They claimed that schools were failing because officials and teachers did not care enough and had to be disciplined by an external force which would expose their records, hold them accountable, label their failures, and create interventions. This critique, believed by many, facilitated the exclusion of educators from the federal legislative process. The law did not reflect what has been learned from research about educational change. It assumed that schools were extremely powerful and families relatively insignificant in determining outcomes on standardized tests. This is in sharp contrast to many studies showing the exact opposite. The law also assumed that effective reforms could be rapidly imposed from outside of schools and that negative sanctions were highly effective. Research suggests that serious reform of schools is long and hard and requires agreement from the staff adopting the reform. It also shows that most reforms have no measurable results and that the school effects are relatively modest compared with the impact of family background. The likelihood of conflict over the law was greatly increased when the promised increases in the educational budget occurred only during the first year. School systems lost what many believed to be the most important advance under the new law 4more adequate funding. Growth in the federal education budget fell far below the agreement and far below the level achieved during the Clinton Administration. At the same time, virtually all states and a great many localities were experiencing serious budget cutbacks stemming from a recession. This meant that the federal government was trying to impose an unprecedented level of control while many school districts and schools did not even have the money to maintain their existing programs and staffs. 6 This was the situation during the first year of implementing the new law. Advocates of the law might describe the period as the confrontation between tough-minded federal reformers, who appropriately strengthened accountability for all districts and schools, and failing local officials, most of whom had not held themselves strictly accountable. Opponents might describe it as a radical effort to tell state and local educators how they must evaluate their students and their schools, what subjects really count for the success of a school and its staff, when public funds must be transferred to activities outside the school whether or not they are coordinated with the school 9s goals, and under what conditions local schools and school districts shall lose all control over their future for failing to meet goals that are wildly inconsistent among the states and have never been fully achieved in any district with a significant population of low income students. This report is not an effort to evaluate the ultimate impact of the reforms but an effort to examine the developing sets of relationships between federal, state and local officials under the new law. Other reports in this series will examine specific outcomes. The findings in this study are troubling. The basic reality is that the Bush Administration 9s Department of Education has not honored either the best traditions of federalism or shown respect for professionals working within federal grant programs at the state and local level. It has adopted a command and control posture, often insulting officials who challenge its claims or policies, implying that anyone who disagrees is just not up to an appropriate standard. The Department has been weakly staffed and has had serious turnover at the top levels of program administration. Many state and local educators feel that there is no interaction within the system and that federal officials are not being reasonable in their requirements or collaborative in their relationships. The initial process of organizing the work, getting the evaluation machinery in place, and preparing the first reports has absorbed much energy. The reporting required under the act has already generated a great deal of tension in the federal system and among educational professionals. The sanctions and interventions that will be required in the next years if the law is seriously enforced are vastly more complex and demanding than anything that has happened so far in this process. As I have traveled to many parts of the country since the enactment of No Child Left Behind, I have seen a steadily increasing awareness of the new law, something that became much more apparent with the release of the names of the many schools that failed to achieve cadequate yearly progress d as defined in the law. There are widely divided opinions now about the law. Some see it as a progressive reform creating positive tension for change while others see it as a plot to undermine and discredit public schools and open the way for mass financing of private school vouchers. Many are confused. Some are angry. Some believe that it is inevitable that the law will be changed or enforcement gutted before the ctrain wreck d of a massive federal-state confrontation develops. People of quite different ideological stripes share these views. Still others are talking about withdrawing from state participation in the program or suing the Administration. It has all the marks of a decisive period in the development of intergovernmental relations in education. I strongly believe that the time has come to bring together local, state, and federal educators and officials to work through administrative and legislative policy issues. Together they need to find 7 clarifications and modifications that will produce a set of policies that make sense to educators and experts and offer some promise of serious collaboration that will lead to real progress. From a civil rights perspective it is very important that the good goals of this law do not punish minority students and schools unfairly and undermine the very processes and people who are essential to turning those schools around. By the same token, it is very important that the idea of assessment and serious accountability for all groups of students not be lost in the process of change. From our work with civil rights advocates, teacher organizations, school officials, and leading researchers, we are convinced that it is possible to save the good goals of this legislation while building real commitment to serious improvement. But, it will take strong leadership at all levels of government to stop the forces that are speeding toward a train wreck and get them all going together in the same direction toward the same goal on a track that is more carefully engineered. None of the problems should be too surprising. Many of the provisions now affecting schools across the country were last minute compromises between conflicting and often inconsistent proposals, many of which had never been seriously tried in practice. The bargain that made the bill possible was an uneasy and extremely complex compromise between very different theories of school improvement and the role of public schools. It is a little like launching a rocket ship assembled under terrible pressure not by engineers but by politicians. The least that could be expected would be serious mid-course corrections if the vehicle were to reach its goal. Since this program is by far the largest national effort to improve educational opportunity for the nation 9s impoverished students, whose future is very directly linked to educational success, it is very important that those corrections be made and that the engineers be brought into the process. 8 EXECUTIVE SUMMARY The No Child Left Behind Act of 2001 (NCLB) alters federal-state relations by expanding the federal role further into a primary function of state and local governments and raises questions about how federal, state, and local policies interact 4that is, conflict or reinforce each other. Early indications suggest that states are differently positioned to assume the additional responsibilities required under NCLB. While there has been some intergovernmental collaboration and cooperation, the ambitious expectations, strict timelines, and exacting set of regulations combined with the fiscal constraints operating on states imposed significant burdens on state and local implementation. It is our perspective that NCLB is testing the limits of the federal system with a fundamentally different model 4one that assumes that by centralizing rules and educational policy, institutions and practice can be rapidly changed to accommodate new requirements. Our research on the status of federal-state relationships during the first year indicates that many of the conditions that would facilitate implementation of NCLB are not there. In particular: " States have limited administrative capacity and technical expertise needed to implement the NCLB requirements. While states differ in their capacity to meet the new requirements, the technical challenges of implementing a test-based accountability system exceed the capacity of many states. We found that, contrary to the Bush administration 9s claim that all states were in compliance with NCLB, only 11 states actually had accountability plans that were fully approved by the U.S. Department of Education in June 2003. States that were not in compliance with the 1994 Improving American 9s Schools Act, the less intrusive predecessor to NCLB, had a more difficult time meeting the new requirements than those states that had complied with the earlier law. Those parts of the law that required difficult technical decisions, such as developing a method to determine adequate yearly progress and building a reliable and valid testing system, were the most difficult for states to meet. While our findings suggest general support for accountability, support for a test-based accountability system is more limited. " State budget shortfalls threaten to erode state commitment to the law and complicate implementation efforts. All fifty states are faced with severe budget shortages that resulted in cuts to education and strained the capacity of state departments of education to meet the early requirements of the law. While states are just beginning to sort out what it will cost to implement NCLB and how this balances out against the available resources, evidence is mounting that the costs vastly exceed the additional revenues that states received from the federal government. The law gives states some money to meet the testing requirements, but none to meet the additional administrative costs of implementing other requirements. As states move into the second year of implementation when they will be required to offer intervention services to an increasing number of schools identified for improvement, the costs of meeting additional staffing requirements are likely to further strain the capacity of most state education departments. " Political support for the law is eroding across all levels of state and local government and the educational system as political leaders and professional educators begin to understand 9 how the law 9s provisions affect state and local priorities. Party alliance has not guaranteed cooperation with the federal goals, especially when they conflicted with local priorities and interfered with local control of education. District officials and local educators, who must implement the new requirements, were increasingly vocal about their objections to NCLB. Educators considered many of the NCLB provisions arbitrary and unfair, particularly the adequate yearly progress designations and testing requirements for special education students and English language learners. " The federal administration has done little that would ease the burden of implementing the new requirements. It has provided little in terms of fiscal relief to states. Instead, it has focused on enforcement by monitoring the states for compliance and insuring that states adhere to the implementation timelines and meet the technical requirements of the law. While the administration has allowed considerable variability in how states designed their accountability plans, they selectively enforced and narrowly interpreted requirements that advanced their policy priorities. This approach runs the risk of alienating local officials who must implement the law and overwhelming educational systems that cannot meet the stringent requirements. Unless the administration gains the cooperation of local officials and develops a constituency for this law among professional educators, it is unlikely to achieve its policy goals. When federalism works well there is collaboration across levels of government and federal deference to state priorities. Usually, policy is shaped to accommodate local circumstances while local conditions change in response to reform initiatives. For this to happen, there needs to be flexibility on the part of the federal government and the development of professional expertise and a political support structure at the local level that can work both formally and informally to put policies in place. The Bush administration 9s strategy for implementing NCLB 4to adhere strictly to implementation timelines and threaten to withhold Title I funds to states out of compliance 4 departs from this model of cooperative federalism. While the administration recognizes the political significance of educational policy and has moved aggressively to promote its education agenda with the American public, it seems less aware of the institutional and organizational impediments to dramatically changing state accountability systems and educational practices. For federalism to work, the administration needs to recognize the limitations of it current approach and how far NCLB deviates from the traditional model of federal-state relations. Finally, the administration needs to acknowledge the legitimate role of each level of government in the educational system and re-consider the proper role of the federal government within this broader framework. 10 INTRODUCTION On June 10, 2003, President Bush announced that every state, Puerto Rico, and the District of Columbia were in compliance with the No Child Left Behind Act (NCLB) (Bush, 2003, June 10). Although it soon became apparent that only 11 states were actually in compliance, Secretary of Education Rod Paige, in an update to members of Congress, stated cIn just 18 months every state has developed a plan to improve student achievement across the board and to close the achievement gap d and further declared cwe are making tremendous progress turning the vision of this law into a reality for every child in every public school in every state d (Paige, 2003). The Democrats responded, claiming that the cAdministration is out of compliance with the education law d for failing to live up to promises to fund the new requirements (Miller, 2003). They were skeptical of the White House 9s optimistic assessment of NCLB, claiming cIt is simply not fair to students, parents, teachers, school administrators, and taxpayers for the federal government to mandate tough accountability provisions and penalties for schools that fail to meet high academic standards with one hand, and then with the other hand, deny them the money needed to achieve these reforms d (Durbin, 2003). This exchange illustrates how far the Democrats and Republicans have moved from the bipartisan agreement that resulted in the NCLB act. The optimistic announcement by the Bush administration underscores the administration 9s compliance orientation to federal-state relations and the Democratic response suggests disappointment with how implementation has played out. Yet many of the challenges of NCLB were foreshadowed by the incoherence of the law and the ambivalence by members of both parties to particular provisions. When Congress passed NCLB, both parties agreed to continue along the path of standards-based reform and accountability for student achievement. There was general agreement on the principal of racial and ethnic equity and support for subgroup accountability as a means to achieve that. Two primary goals of the Republicans 4expanded public school choice and supplemental educational services 4were agreed to by the Democrats as a compromise to pass the law. The Democrats agreed to the increased accountability provisions and the additional data collection it would entail only if states were given additional resources to meet the new requirements. Additionally, the Democrats hoped that by including graduation requirements as part of the formula for school accountability, this would counterbalance the reliance on test scores. For President Bush, the legislation met his goal of expanding the Texas model of test-based accountability to the rest of the country. To achieve the goals of the legislation, NCLB altered the distribution of power among federal, state, and local officials by expanding federal power to regulate education. The requirement that all students reach 100% proficient in 12 years and the very prescriptive nature of the interventions are primary mechanisms that facilitated this expansion of federal power. NCLB also departed from its traditional role of targeting additional resources directed to special populations by allowing resources to be diverted from schools serving disadvantaged students and giving states additional leverage to allocate resources. While both Republicans and Democrats had reservations about the legislation and the changed definition of federalism it entailed, it offered both an opportunity to achieve their goals. For the Republicans, the risk of increasing the role of the federal government in education, an area traditionally considered the prerogative of states, was particularly delicate since they advocate limited government and 11 state 9s rights. But it did offer them a chance to use federal power to increase test-based accountability and to insert market accountability into education. The Democrats anticipated that the expanded federal role could be used to increase access to a quality education. When Congress enacted NCLB, it was unclear how the change in the distribution of power within the federal system might play itself out or the extent to which top-down reform could influence the educational change process. To be successful, these reforms will need to develop strong political constituencies, professional support among those responsible for implementing them, and respond to a problem widely perceived by the American public. To achieve the goals of either the Democrats or Republicans will require cooperation among federal, state, and district officials within a system where traditionally the federal role has been limited and influencing education and enticing local cooperation has required strong incentives or extensive federal oversight. 1 Yet early indications suggest that the complexity of the new law as well as political and ideological conflicts may preclude a predictable and cooperative implementation process. Politically, the administration will need to convince governors that NCLB is not another unfunded mandate and governors will have to weigh the political benefits of increased federally designed accountability against the costs of identifying large numbers of failing schools. The role of the U.S. Department of Education (ED) will likely change as they shift from monitoring compliance with particular program requirements to monitoring state accountability plans while still providing for local flexibility. State education officials will have to craft an accountability system that complies with the law and entice local cooperation, while local district officials will have to convince teachers and principals to implement the new reforms. Given the considerable diversity among states and local communities, local context will likely shape federal-state relationships and how NCLB will be implemented. In this paper, we argue that NCLB is testing the limits of the federal system with a fundamentally different model 4one that assumes that by centralizing rules and educational policy, institutions and practice can be rapidly changed to accommodate new requirements. Our focus is on the status of federal-state relationships during the first year of implementing NCLB. We begin with a discussion of the literature on federal-state relations and the role of the federal government in educational reform. Next, we compare NCLB to its predecessor, pointing out where the two laws diverge and the implications of NCLB for federalism. In the third section, we explore the Bush administration 9s concept of federalism and the factors that are guiding its decisions in education. Then we trace enforcement action during the first year of implementing NCLB. The fourth section analyzes how federal and state policies interact, focusing on how they conflict or reinforce each other. In this section we present data on how well positioned states are to meet the challenges of NCLB and identify the conditions that have either facilitated or constrained implementation. We conclude with a discussion of the implications of our findings for the future of NCLB and suggestions for the direction of future research. Our analysis of federal-state relations is based on multiple sources of information. We conducted semi-structured interviews with federal policymakers and administrators in the U.S. Department of Education, staff for key Republican and Democratic lawmakers who were instrumental in drafting NCLB, and leaders of several national advocacy organizations with an 1 Civil rights enforcement is the exception to the more collaborative approach to federal-state relationships that has been typical in education. 12 interest in education and state government. In addition to the interview data, we examined regulatory guidance on NCLB, policy letters issued by the Secretary of Education, speeches by the President and Secretary, reports issued by the U.S. General Accounting Office and other organizations, and newspaper articles from across the country. We also reviewed state policy documents and state accountability plans submitted to comply with NCLB. 13 LITERATURE REVIEW: FEDERAL-STATE RELATIONSHIPS AND EDUCATION REFORM NCLB raises questions about how federal, state, and local policies will interact 4that is, conflict or reinforce each other. To fully understand the implications of NCLB requires examining these interactions as well as understanding the substantive educational issues it raises. NCLB rearranges relationships between the federal government and the states by expanding federal control in some areas and decentralizing control in others. For example, it outlines specific sanctions for low performing schools and places extreme importance on the attainment of academic proficiency as defined by the states, but allows for quite divergent proficiency standards across states. By narrowly defining proficiency as tests scores in reading and mathematics, it elevates student performance on reading and mathematics assessments above other considerations in determining the academic performance of schools. It sets strict timelines for improving student achievement and defines a specific approach to testing to bring states into compliance with higher academic standards without corresponding attention to the mechanisms by which these strategies will influence teaching and learning. Since each level of government typically has its own priorities and decision-making rules, institutional arrangements at the state and local levels may either facilitate or constrain the implementation of the federal Title I expectations. One facet of American federalism is the relationship between the federal government and the states and how the federal system operates to achieve particular policy objectives. In education, the federal government has played a limited role by providing additional resources targeted on particular types of students such as disadvantaged children or those with disabilities. Still, within this limited framework implementation of federal education programs required the cooperation of local officials and the development of a professional cadre of people committed to the policy and the program. Intergovernmental conflict has arisen when the administration of programs was politicized, when there were serious economic or fiscal difficulties, or administrative officials lacked autonomy vis-à-vis their elected officials (Peterson, Rabe, & Wong, 1986). Researchers who have examined the federal role vis-à-vis the states have found that policy implementation evolved as programs matured. In the early stages of implementing a new policy or program, there was often bureaucratic ineptitude, the misuse of resources, or concessions to special interests as well as conflicts between local priorities and federally initiated programs (Odden, 1991; Peterson et al., 1986). As programs matured, conflict was replaced with cooperation and implementation was facilitated by the development of internal professional expertise and an external political support structure, which worked formally and informally to put a program in place (Odden, 1991). Conflict was greater when state and local officials were asked to carry out responsibilities that were different from what they might have initiated on their own and cooperation was facilitated when policies reinforced local priorities (Peterson et al., 1986). In the process of implementing reform, research has found mutual accommodation where policies from above are shaped to fit local circumstances, while, at the same time, local conditions changed in response to reform (Loveless, 1999; Odden, 1991; Peterson et al., 1986). Research clearly demonstrated that local implementation was shaped by local context (Kaestle & 14 Smith, 1982; Knapp, Stearns, Turnbull, David, & Peterson, 1991; Murphy, 1971). For example, in a study of tracking reform, Loveless (1999) found that different tracking patterns emerged based on organizational, institutional, and other properties that structured local decision-making. Research on standards, accountability, and assessment policies also finds that implementation varies across states, depending on the local context. A study on the adoption of high school graduation exams found that they were more common in states that allocated less money than the national average for schooling, in states with more centralized governments, and in states with higher percentages of African Americans, Latinos, and low-income students (Amrein & D.C., 2002). While collaboration and federal deference to states exemplifies the operation of federalism when it works well, federal education policy has become more regulatory over time (Manna, 2003). A system of regulatory federalism has emerged (Cibulka, 1996) where the national government determines policy priorities and then gives the state and local government the responsibility for implementation. Under regulatory federalism, the state role changes from one of the collaborative distribution of federal resources to one of regulating the implementation of the federal requirements in local school districts. One of the consequences of regulatory federalism has been the institutional incapacity of school systems to act decisively with a set of reforms that respond to demands for change coming from the environment (Cibulka, 1996). NCLB takes regulatory federalism a step further by holding states accountable for improving the academic achievement of students. To achieve its objectives will likely involve more federal and state intervention in core areas traditionally under local control, such as the curriculum, testing, and teacher qualifications (Kincaid, 2001). In the next section we compare NCLB to its predecessor and discuss how NCLB departs from previous policy and alters the federal role in education. 15 DEFINING THE POLICY AND GOVERNANCE CHALLENGES Title I of the Elementary and Secondary Education Act (ESEA) has been the primary federal education program designed to assist educationally and economically disadvantaged students. Title I provided $11.3 billion in 2003 and served more than 12.5 million students in 90% of the nation 9s school districts. Since its inception in 1965, it targeted additional resources to high poverty schools with the express purpose of reducing the disparities in educational achievement between at-risk students and their more advantaged peers (Citizens' Commission on Civil Rights, 1999; Vinovskis, 1999). This bill represented the federal government 9s major commitment to educational equity. The No Child Left Behind Act (NCLB), which reauthorized ESEA, has some continuity with the ideas in the Clinton administration 9s1994 Improving America 9s Schools Act (IASA). 2 IASA was notable for mandating that challenging standards apply to all students, including those receiving Title I services. States were required to develop content and performance standards, adopt annual assessments that measured student progress against those standards, and hold schools accountable for the achievement of all students. Schools and districts receiving Title I funding were required to demonstrate adequate yearly progress that was ccontinuous and substantial d and that linked progress to performance on assessments (P. L. 107-110, Sec. 1111(b)(2)(B)). It left it up to the states to define adequate yearly progress goals. State educational agencies were required to provide support to districts and schools and help them develop the capacity to comply with the law. Districts were required to identify schools in need of improvement that had not made adequate progress as defined by the states and were given the authority to take corrective action against a school. The actions a district could take included withholding funds, establishing collaborative agreements with other public agencies for social and health services, cmaking alternative governance arrangements such as the creation of a public charter school, d decreasing school-level decision making authority, reconstituting the school staff, or authorizing students to transfer to other public schools served by the local educational agency, among others (P. L. 107-110, Sec. 1116(c)(5)(i)). There were no provisions for supplemental educational services. There was very little enforcement of these ideas under the Clinton administration and few states had made substantial progress in meeting the IASA requirements. While many of the NCLB concepts were present in a less developed way in IASA, NCLB departs from its predecessor in major ways (see Table 1 for a summary of policy changes). NCLB raises the expectations and goals of Title I policy by emphasizing equal educational outcomes. Indeed, an important goal of NCLB is to close cthe achievement gap between high- and low-performing children, especially gaps between minority and non-minority students, and between disadvantaged children and their more advantaged peers d (P. L. 107-110, Sec. 1001, (3)). To narrow the achievement gap, NCLB imposes strict timelines for improving the achievement of disadvantaged students and mandates specific sanctions for schools not performing well. In contrast to IASA, states must adhere to federally determined timelines for identifying failing schools and improving student achievement, establishing adequate yearly progress goals, and ensuring teacher quality. States must also establish performance standards and define adequate yearly progress goals to ensure that all students, including major 2 For a detailed comparison of the 1994 IASA and the 2001 NCLB requirements, see Title I Report (January 2002). 16 demographic subgroups, reach cproficiency d within 12 years (2013-14). While IASA required states to disaggregate assessment results, NCLB added subgroup accountability for economically disadvantaged and limited English proficient students, students with disabilities, and for students from major racial and ethnic groups. Schools failing to make adequate yearly progress targets for any subgroup for two consecutive years will be identified as cin need of improvement d and thus, subject to a series of sanctions, ranging from public school choice to school reconstitution. Sanctions are no longer at the discretion of local districts. Moreover, through the use of sanctions, NCLB introduces the idea of exit from the public schools and the transfer of money away from poorly performing schools as strategies for school improvement (Hirschman, 1970). This contrasts sharply with the idea of reform embraced under previous federal education policy where low performing schools were given additional resources and flexibility to coordinate Title I programming. Table 1: Summary of Policy Changes in the 2001 ESEA Reauthorization of Title I Policy Changes " Emphasizes equal educational outcomes " Imposes timelines for improving student achievement " Expands test-based accountability to all students in public schools, not just those in schools receiving Title I funds " Specifies consequences for noncompliance; reduces the use of timeline waivers " Mandates specific sanctions for schools not performing well that rely on exit strategies or the transfer of money away from public schools " Expands the testing requirements and establishes a timeline for implementing the new tests " Defines proficiency as test scores in reading and mathematics NCLB also expands the testing requirements, calling for testing students annually in grades 3-8 in reading and mathematics and testing limited English proficient students in English after three years in the educational system. States are responsible for developing and adopting these tests, but they must implement the new tests according to a schedule established by the federal government. 3 These requirements extend to all students in public schools and not just those receiving Title I funding as in the past. More so than IASA, NCLB narrowly defines proficiency as tests scores in reading and mathematics. While the requirements for proficiency include high school graduation rates, the proportion of students tested, and other academic indicators, the definition of proficiency is dominated by tests in reading and mathematics. 4 Reinforcing the dominance of test scores, NCLB prohibits a state from using the other academic indictors cto reduce the number of, or change, the schools that would otherwise be subject to school improvement, corrective action, or restructuring d (P. L. 107-110, Sec. 1111, (b)(2)(D)(ii)). Instead, it encourages districts to use the additional indicators cto identify additional schools for 3 The timeline mandates assessment of English language learners starting in school year 2002-03 and administering annual statewide tests in mathematics and reading/language arts to all students in grades 3 through 8 by school year 2005-06. 4 Science assessments will be added in 2007-08 in selected grades. 17 school improvement or in need of corrective action or restructuring d (P.L. 107-110, Sec. 1111, (b)(2)(D)(ii)). In addition to the policy changes, NCLB affects the politics of education and raises fundamental issues about who controls education. First, it alters federal-state relationships by expanding the role of the federal government further into a primary function of state and local governments (Table 2). NCLB now decides what constitutes a failing school and what should be done about it. It dictates the pace of change by setting timelines for implementation and school improvement and requires participation in the National Assessment of Educational Progress (NAEP) as one measure of student performance. Second, it affects governance arrangements within states by favoring state education agencies and chief state school officers over the governor, legislature, and state and local boards. By directing federal funds to state education agencies, it gives them the authority to administer the federally funded programs without necessarily consulting with elected officials and to make commitments with the federal government without considering how their decisions might affect state policy and state budgets (Michelau & Shreve, 2002). By placing additional accountability responsibilities on state educational agencies, it gives them authority over local boards to define what counts for proficiency. Finally, instead of reforms that target special populations, NCLB seeks to reform entire educational systems. Implementation is no longer about whether a particular program is being implemented, but whether these various programs improve schools, districts, and increasingly, student achievement (Odden, 1991). Table 2: Implications of NCLB for Federalism and the Governance of Education Federalism & Governance Implications " Expands the role of the federal government in education " Alters federal-state relationships concerning who controls education " Effects state level governance arrangements " Seeks to reform entire educational systems 18 THE BUSH ADMINISTRATION AND FEDERALISM An Activist Federal Administration Traditional views of federalism see the federal government stepping in when state and local governments would not otherwise provide a public service at sufficient levels (Peterson et al., 1986). Thus, for example, categorical programs targeted funds on disadvantaged students and students with disabilities that were not adequately served by local educational agencies. On the other hand, conservative views of federalism emphasize the prerogatives of state and local governments as the legitimate sources of policy and support the devolution of social programs to the states (Nathan, Gais, & Fossett, 2003). This view supports local decision-making without interference from the federal government and assumes that states will invest funds in ways that will achieve particular policy goals. At times, Republicans have used the federal bully pulpit to change the education agenda or to meet international and economic goals, which was the case during both the Eisenhower and Reagan administrations. With NCLB, the objectives of Republican reformers have changed from limiting the federal bureaucracy and decentralizing decision making to the states towards an activist bureaucracy that assertively promotes particular political and policy goals. However, the rationale of the Bush administration for reversing long-held Republican doctrines and expanding the role of the federal bureaucracy in education has not been fully stated. The administration has dodged the issue of local control by asserting that the law gives local school districts greater flexibility in the use of federal funds and by arguing that the new testing requirements do not dictate what is taught or how it is taught (Godwin & Sheard, 2001). Rather, it is more likely that the administration has taken an activist role in education policy because NCLB is meeting the administration 9s political goals. Since Bush campaigned on an education agenda, the enactment of NCLB fulfilled his campaign promise. Until November 2003, it was his only domestic policy accomplishment and an important issue of political symbolism. Politically, NCLB allows the administration to say it has done something to improve education, an issue that the American public cares about. And, much as the Reagan administration did during the Educational Excellence movement in the 1980s, by adopting an issue that traditionally was dominated by the Democrats, the administration can claim education as one of its own. Several provisions in NCLB also appeal to the ideological agenda of the administration 9s constituencies. Support for supplemental educational services and public school choice are the prime examples. Supplemental services are additional academic instruction provided outside the regular school day by public and private organizations (U. S. Department of Education, 2003). Public school choice allows students attending schools identified as in need of improvement to transfer to another public school within the local educational agency. Generally, support for these policies reflects a faith in market approaches that is a consistent theme in conservative politics. There is a belief, for example, within the administration that supplemental services will raise student achievement and improve schools. One official in the Department of Education (ED) described it this way: I have heard comments such as, 8supplemental services is a program that will drain resources away from schools that need them the most. 9 It was very disheartening to hear 19 that. My response is, supplemental services is a wonderful opportunity for a partnership between families, schools, and the service provider. Schools shouldn 9t see it as a threat because not only will supplemental services help the child meet higher academic achievement goals or increase their performance, but as a consequence, it is going to bring schools out of improvement status as that student achievement goes up and schools should be welcoming the opportunity for supplemental services and it 9s not taking money away because a parent can choose the supplemental services or choice, but a parent can 9t have both. And so, the funds are paid to a supplemental service provider, who may be a private provider, but the benefits accrue to the school (C. Yecke, personal communication, November 15, 2002). Implicit in this model of student and school improvement is the assumption that supplemental service providers will know what to do, will do it better than the schools themselves could do, and will be able to do what schools could not 4raise the achievement of students in consistently poorly performing schools. It also assumes there are other benefits that accrue from supplemental services, such as the partnership between the provider and families and schools. Neither of these assumptions is based on evidence since there was no model of this program in existence prior to NCLB. Finally, it shifts the focus away from schoolwide efforts to improve the achievement of all students to a focus on improving individual student achievement. The Bush administration has acted assertively to advance its preferred educational policies and provide legitimacy for NCLB since political legitimacy is one measure of effectiveness. It placed great importance on all states submitting their accountability plans on time and, in a very visible act of political symbolism, approved all 50 plans in June 2003 even though many of those plans were incomplete. Since ED was still reviewing many of the plans, the symbolic act of approving the state plans provided the administration an opportunity to promote NCLB and to boast about the administration 9s accomplishments. It also focused attention on President Bush 9s domestic agenda, which was the topic of his September 6, 2003 radio address to the nation (Bush, 2003). In this address, the President said: The premise of the No Child Left Behind Act is simple: all children can learn, and the only way to make sure our children are learning is to measure their progress with tests. So the No Child Left Behind Act requires regular testing in the basics of reading and math for every child in every school, starting in the third grade. And the law sets a clear goal for American education: every child, in every school, must perform at grade level in reading and math, which are the keys to all learning. To meet this goal, all 50 states and the District of Columbia and Puerto Rico have designed accountability plans that have been approved by the Department of Education and are now being put into effect in America 9s schools (Bush, 2003b). To promote the legislation, the administration launched a very visible and extensive public relations campaign. This included substantive activities 4publications, guidebooks, and information disseminated through the NCLB website 4to the mundane 4publishing a NCLB anthem and putting little red schoolhouses outside the Department of Education. Secretary Paige embarked on a 25-city tour across America to promote NCLB (April 3 September 2002). In speeches he delivered on this tour, Paige stressed the goals of caccountability, results, teacher 20 quality, and reading programs that work d and the unique role of the Bush administration in cenacting the most sweeping change in education in 35 years d (U.S. Department of Education, 2002, June 10). According to Paige, cNever before have we as a nation made a commitment to all children in our public schools that every one of them can and will learn. Every single child. Regardless of race, income or zip code d (U.S. Department of Education, 2002, June 10). In February 2003, the administration stepped up its public relation campaign to promote the NCLB act by assembling an eight-person team of political appointees. This team was in addition to the Department of Education 9s ten person communication staff (Davis, 2003). According to the Bush administration, the team 9s responsibilities included clearing up misperceptions about the act and coordinating staff appearances around the country to promote NCLB. One major initiative of the team was the cNCLB Extra Credit d emails sent daily to reporters and members of the education policy community on various topics related to NCLB. Federal Enforcement During Year One The job of enforcing the NCLB requirements has challenged the capabilities of the administration, particularly since the new demands vastly exceed what they have been able to enforce in the past. 5 Under IASA, enforcement by the federal government was lax as states were granted broad waivers through the Education Flexibility Partnership Program. When NCLB was enacted, only 19 states had fully approved standards and assessment systems mandated six years earlier under the 1994 law (Robelen, 2002). The U.S. Department of Education (ED) had granted timeline waivers to 28 states and entered into compliance agreements with five states. There was no serious enforcement of the federal requirements under IASA and no states lost federal money for non-compliance. Since the new administration has been in office, it has worked diligently to bring more states into compliance with IASA (J. Jackson, personal communication, December 12, 2002; C. Sims, personal communication, December 10, 2002). However, progress towards meeting this goal is unknown since ED stopped reporting the status of compliance with the 1994 law on its web site in February 2003. 6 As of March 2003, there were 21 states that were fully compliant with IASA (Table 3). States that failed to meet the extended timelines for implementing the 1994 requirements could be subjected to the withholding of some Title I administrative funds. While the 1994 legislation was not specific about the amount of administrative funds that could be withheld, the 2001 legislation specified that ED must withhold 25% of the state 9s administrative funds until the state meets the 1994 requirements, an amount that could be significant for states. The granting of waivers is likely to decrease since NCLB specifies timelines for states to meet the new requirements and allows for one-year extensions of these deadlines only in the event of cnatural disaster or a precipitous and unforeseen decline in the financial resources of the State d (P. L. 5 Underscoring the limited capabilities of the administration, the Office of Elementary and Secondary Education Student Achievement and School Accountability Programs (Title I), the office responsible for monitoring the development of state accountability plans and their implementation, had seven full time staff and one consultant to provide technical expertise to all 50 state departments of education as they developed their consolidated accountability application in 2002-03. Four political appointees assisted them. 6 The status of state compliance with the 1994 law was found on the U.S. Department of Education web site, www.ed.gov/offices/OESE/saa/state_chart.html . This site has not been updated since February 12, 2003. 21 107-110, Sec. 1111 (b)(3)(C)(vii)). With the states facing major budget shortfalls that extend over three years (FY 2002 3 FY 2004), many states are now confronting what could be defined as a precipitous decline in financial resources. 7 With the timeline waivers either set to expire or already expired, many states were out of complianc

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