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the best policy: Making government work better.

Flunking OutBush's pet education bill is in serious trouble.

By Alexander Russo
Posted Thursday, Aug. 28, 2003, at 2:23 PM ET

Earlier this summer, school officials in California announced the preliminary results from their latest round of standardized testing, and the results were ugly: Roughly two out of three schools had failed to meet the state's standards for academic progress. But what sounds like bad news for California's students could be even worse news for the Bush administration and for education reform: The state's academic standards track closely with those of the No Child Left Behind Act, the education bill that Bush signed into law with bipartisan support and great fanfare less than two years ago. If other states go the way of California, as many expect, there is about to be a lot of bad news surrounding No Child Left Behind—and a serious chance that No Child Left Behind will itself be left behind.

NCLB was supposed to improve schools by holding them to higher academic standards and letting students transfer out of failing schools. Instead, over the past few months especially, this massive education law has generated little more than bad news, indifference, and increasing resistance. The hard-to-imagine numbers of failing schools in California and elsewhere have worn down the public's confidence in the law. Low-income and minority parents have failed to show strong interest in the transfer option that was supposed to help them escape dysfunctional schools. Congressional Democrats and some of the nation's largest education groups have already begun working to stop it in its tracks. The law seems to have few friends and many enemies.

How did it come to this? For starters, NCLB may well have been too fast out of the gate and too crude in how it "rates" schools. Even after a built-in yearlong delay, the law's school rating system sets an extremely high standard for academic achievement, compared to what most schools have experienced in the past, and relies on a simplistic thumbs-up, thumbs-down approach instead of giving schools letter grades or numerical scores. In California, some 40 percent of failing schools, including some of the state's most highly regarded, just narrowly missed the cutoff on only one of the many elements of the complex rating system. But they were all put on the same list.

In other arenas, like the much-heralded school choice provision, NCLB is just too weak to open up real options. The provision that's intended to let students transfer out of failing schools in fact leaves school districts and states an abundance of ways to prevent students from transferring or to narrowly limit where they can go. As a result, there are often few really high-achieving schools that will take students, and understandably little interest from parents in uprooting their children for marginal improvement.

In Chicago last year, less than a third of the lowest-performing schools actually gave parents a transfer option. Roughly three out of four of the city's better-performing schools were exempted from having to accept transfers. Only 10 percent of the eligible students in Chicago even requested a transfer, and only half of those were approved. This year, Chicago has 365 failing schools, but only 38 out of roughly 240 better-performing schools—just over 15 percent—are being required to take in transfers. That's not much of a choice.

What's more, the law unintentionally creates a situation in which NCLB is pretty much all bad news, all the time. Parents who thought their children's schools were doing fine are told the schools are lagging. Parents who were supposed to get the chance to transfer their children to a better school find out that there's nowhere to go, or decide they'd rather keep their kids in a failing neighborhood school than ship them across town. Parents at schools that are required to take in transfer students worry about the impact of the transfers on the school. The press has frequently taken side with the teachers, progressive reformers, and education officials who generally dislike the law. So far, at least, it's hard to find a winner.

Meanwhile, Congressional Democrats, having originally helped write and pass the law, have now decided to oppose it. Somewhat disingenuously, they claim that President Bush reneged on a promise to fund the law at its highest possible levels. Democrats' claims are based on what are called "authorization" levels, nonbinding funding targets written into nearly every law that are frequently ignored during the annual appropriations process. In truth, funding for NCLB has increased substantially over the past two years, just not as much as it could have. The first in what will likely be a series of Democratic efforts to suspend NCLB failed along party lines in the House over the summer. More will continue when Congress returns next week.

Even if the Democrats fail, there are a number of other more likely ways NCLB could end up watered down, stalled, or otherwise left at the side of the road. The U.S. Department of Education, in charge of monitoring and enforcing the law, has a long history of lax enforcement, and in fact has already started to let some states and districts off the hook. Congressional Republicans, feeling the growing heat against the law this fall, could be tempted to soften its impact by quietly adding an amendment to some other bill. Perhaps most likely of all, districts and states could simply resist implementing key portions of the law, publicly or not, daring the Feds to do something about it (which they rarely do). This has already begun as well.

Ironically, it would be a shame if No Child Left Behind died off.

For all its flaws, NCLB is not all that bad. The accountability process it establishes is generally defensible—and largely based on a framework created by the Clinton administration in 1994. The long lists of failing schools are in many ways simply the result of closing loopholes (school districts can no longer exempt many poor and minority children from standardized tests, for example). However imperfectly, the law tries to give low-income and minority parents some of the options—additional tutoring and transfer options—that usually require extra cash or savvy maneuvering. There is no inherent conflict between improving neighborhood schools and letting some students transfer out of them if they want to, especially given the past few years of increased federal education funding and a 20 percent funding cap in the law. Choice will not break the bank.

At the same time, what few of the law's most ardent opponents realize is that the early demise of NCLB is unlikely to usher in a golden age of education reform. Many school districts would likely stagnate rather than make difficult and necessary changes. Mainstream education reform would be dead in the water. Federal education funding would level off. And renewed calls for more radical changes like vouchers and privatization—just what the law's opponents fear most—would likely increase.

No Child Left Behind can be saved. A letter grade or point system could help make better sense of its rating scheme and defuse the crisis atmosphere it now creates. Requiring districts to save a certain amount of space in the best-performing schools, or to give NCLB children a priority when it comes to getting into a magnet school, would help make the choice program more viable than it is now. Simply increasing public attention on other, somewhat less ideological parts of the law, like the call for more qualified teachers, could also make a big difference. Most of all, the Education Department needs to stick by its guns.

But this is unlikely. Most lawmakers are loath to reopen laws midstream, and none of these relatively minor changes would satisfy hard-core opponents of the law anyway. Democrats seem to feel that they have an issue to take into the next campaign cycle. Republicans can always blame teachers unions and stubborn bureaucracies for any lack of progress. In the meantime, state and local officials and teachers have cover to resist implementing some of the law's toughest provisions. It's a grim mess, and little gets better.