Embedded in the Bush administration’s signature federal education reform initiative, the No Child Left Behind Act, was a time bomb waiting to explode - enacted in Jan. 8, 2002, the NCLB Act (also known as the Elementary and Secondary Education Act - ESEA) required all states receiving federal Title I funds to meet the goal of having 100% of students proficient on annual state reading and math tests by the end of 2014. Although this requirement was widely but quietly viewed as unrealistic and unattainable, as 2014 got closer, pushback from the education community became much more pronounced.

Many looked to Congress to act quickly in reauthorizing the NCLB/ESEA Act in order to eliminate the 2014 requirement.  The Obama administration started the push by releasing its blueprint for changing the law in March 2010. But Congress was focused on the economy, with little interest in tackling thorny education issues. As time passed and Congress continued to drag its feet on the issue, some states started taking matters into their own hands; several states dug in their heels by refusing to comply with the NCLB requirement to annually increase adequate yearly progress (AYP) targets leading up to 100% proficiency in 2014, despite warnings that doing so could cost those states millions of dollars in federal aid.  

Waivers: No such thing as free lunch

The Obama administration reacted to these states’ actions by announcing last August that it would use its executive authority to grant states waivers from the law, thus upping the ante on Congress to act. Although some members of Congress publicly questioned the administration’s authority to bypass Congress in changing NCLB requirements,  the administration proceeded with its plan and more than 40 states have applied for the waiver as of this writing. Texas was among a group of states that did not notify USDE of its intent to apply by the October deadline, and recent pronouncements from the Texas Commissioner of Education signaled reluctance to pursue the waivers, citing concern about signing over traditionally state-controlled areas like curriculum and teacher evaluations to the federal government.

Unfortunately, as with the administration’s past education initiatives, most notably the Race to the Top (RTTT) grant program, the new waiver program comes with strings attached, many of them remarkably similar to the RTTT grant requirements, including a call for states to adopt college/career readiness standards in math/reading as well as aligned state tests; prescriptive teacher evaluation systems stipulating that student growth on standardized tests be a significant factor in teacher evaluations and the results be used to make personnel decisions; and state-developed intervention plans for the lowest-performing schools. 

The teacher evaluation requirements were a major factor in TCTA’s decision to support Gov. Rick Perry in declining to pursue RTTT funds in 2010. In particular, TCTA objected that the use of student test scores to measure teacher performance is not supported by the research as valid and reliable, and the requirements essentially enabled the federal government to dictate local employment practices. Perry’s chief objection to the RTTT grant centered on its requirement that states participate in a consortium to develop and adopt common curriculum standards and common assessments. While 48 states had already joined a consortium to do so, called the Common Core initiative, Texas and Alaska did not.

Criticism of the NCLB waiver program has also been leveled by several key members of Congress as well as various education think tanks and experts. Some of the objections have been about the program’s perceived attempt to “federalize” the Common Core curriculum by making it the only practical route for states wanting immediate regulatory relief. Others have criticized the program’s prescriptive teacher evaluation requirements, with some arguing that the federal government should not be in the business of mandating these things, but should instead include them as part of an incentive program.

New ESEA proposals follow, with some dismantling key parts of NCLB

Apparently the announcement of the waiver program had its intended effect; in recent months, there’s been a flurry of activity from Congressional education leaders, with various ESEA rewrite proposals being circulated and discussed in committee. Among the first of those proposals was one by a group of four Republican senators led by former Secretary of Education Lamar Alexander (R-Tennessee), which included the elimination of the NCLB AYP and “highly qualified” teacher requirements. Instead, the proposal encouraged, but didn’t require, states and districts to develop teacher/principal evaluation systems based significantly on student academic achievement. 

Alexander’s proposal prompted swift statements of rebuke by some groups such as the Democrats for Education Reform and civil rights groups, which lambasted the senators for what they described as “a stunning retreat on two decades of reform,” in large part due to the plan’s abandonment of the NCLB AYP requirements.

Meanwhile, Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor, and Pensions Committee, had been negotiating for months with Sen. Michael B. Enzi (R-Wyoming), the top Republican on the committee, on their own ESEA reauthorization proposal. A first draft of the proposal released in early October kept intact the NCLB requirements for annual testing of students in grades 3-8 and once in high school, but eliminated AYP goals, instead requiring schools to show “continuous improvement” for all students, and particular student subgroups. States would be required to adopt college- and career-ready standards in reading, language arts, science and math but there would be no need to submit those to the USDE for approval. Interventions in the vast majority of schools would be left up to the state. But states would have to identify the lowest-performing 5 percent of schools as well as high schools with a high dropout rate, which would be subject to intensive interventions similar to those in the federal School Improvement Grant program. Additionally, schools with the largest achievement gap between subgroups of students would have to develop plans to address that issue.

But the provisions in the Harkin/Enzi proposal of most direct consequence to teachers regarding teacher evaluation continued to model the same problematic language first seen in the RTTT grant program. Teacher evaluations would have to be based in significant part on evidence of improved student achievement, defined as student performance on standardized tests for all tested subjects (in exchange for which, “highly qualified” requirements would only be applied to new teachers). As a kind of middle ground between Obama’s waiver program requirement for states to adopt prescriptive teacher evaluation systems and to use them to inform personnel decisions, and the Alexander proposal that would incorporate prescribed teacher evaluation systems only as part of an optional competitive grant program, the Harkin/Enzi bill called for states to adopt these teacher evaluation requirements, but only use the results to inform professional development, not personnel decisions. 

Teacher evaluation requirements meet with resistance

This same teacher evaluation language has found its way into almost every federal education grant program and ESEA reauthorization proposal issued in the last couple of years. (At the state level, the same concept appeared in the form of legislation authored by Texas Senate Education Committee Chair Florence Shapiro in the most recent legislative session. Although TCTA strongly objected to the language, we worked in good faith with Shapiro to improve it, though the bill ultimately did not pass).

Interestingly, the teacher evaluation requirements in the Harkin/Enzi bill didn’t last long. In a quick turnaround, the senators posted a new proposal in mid-October that no longer required states to adopt prescribed teacher evaluation requirements, but rather included teacher evaluation requirements as part of the existing federal Teacher Incentive Fund, a competitive grant program for which states can choose to apply. Additionally, teacher evaluation results would be used to inform professional development decisions, but not personnel decisions. And the substitute bill didn’t address equitable distribution of highly qualified teachers, an issue of high importance to some of the nation’s major civil rights advocacy groups. Rather, a state would report how teachers were distributed based on whether they: 1) meet the current NCLB “highly qualified” definition, 2) are inexperienced, 3) did not complete a teacher preparation program, and 4) are not certified in the subject they teach.

Some observers speculated that the change came about as a result of a joint letter issued by several influential national education associations objecting to, among other provisions, the teacher evaluation requirements, including the National Associations of Secondary School Principals, School Boards, and Elementary School Principals. These groups said in a letter to Chairman Harkin and Enzi dated Oct. 16, 2011: 

“While the bill recognizes the crucial role of being able to evaluate teachers and principals in a manner that provides professional feedback and helps improve student achievement, we are concerned about the capacity of states and local school districts to develop meaningful evaluation systems that do not become mechanisms for forced teacher and principal distribution. In addition, we need to prevent the mandating of evaluations that overemphasize standardized test scores at the expense of other important indicators of teachers and principal effectiveness. It should focus on efforts to reform and improve practice to help students learn.”

And on a related topic, the group wrote:

“Now ten years in to the NCLB approach of one-time snap-shot testing, we note that the proposed law, while opening a conversation around growth measures, is still heavily reliant on the idea of testing every child, every year through one single high-stakes summative assessment. We had hoped that ten years of experience and research would result in legislation that moved further away from reliance on standardized tests.”

The movement to scrap the teacher evaluation requirements prompted swift reaction from proponents of the concept, lead among those U.S. Secretary of Education Arne Duncan, who issued a statement saying that he believed a comprehensive teacher evaluation system based on multiple measures, including student achievement, is essential for education reform to move forward. He added, “We cannot retreat from reform.”

Nonetheless, Harkin/Enzi pushed ahead with the revised proposal in an effort to forestall the Obama administration from granting waivers under the new waiver program. They quickly scheduled a committee hearing to consider the bill in order to move it onto the Senate floor for full debate. The committee voted to approve the bill, but acceded to a Republican senator’s request to have a public hearing on the bill in early November before it moved to the Senate floor. The latest reports indicate the Senate won’t take up the bill until next year.

ESEA reauthorization - not a sure thing

Despite this recent flurry of activity by Congress, some political observers are still highly skeptical that Congress will succeed in reauthorizing ESEA before the 2012 election. Opposition is expected from civil rights and business leaders who see revisions as a retreat from state and school accountability for all students and Republican lawmakers are likely to say it continues the federal overreach in the role of public education.