Sizing up the ESEA

Sweeping legislation spells major changes for public education

Six blind men come across an elephant. In their efforts to determine if it's a threat, each one feels the elephant and arrives at a different conclusion: One feels the animal's side and determines that an elephant is like a wall. The second man feels the trunk and decides that an elephant is like a snake. And so on ... In the end, they all dismiss each other's conclusions, and they never put their heads together to determine the real makeup of the beast.

With its 1,100 pages, the newly reauthorized federal Elementary and Secondary Education Act (ESEA), also known as the No Child Left Behind Act, presents a similar problem. The difference is that teachers are fervent in their efforts to collectively determine the nature of the beast.

CTA has established an ESEA Workgroup to look into the ramifications for teachers and students in California and recommend action to address those concerns at the state and federal level. In dissecting the ESEA, the workgroup has raised many concerns:

• The legislation includes a new testing and accountability system that will have to be integrated with the one California already has. Many schools have moved far beyond the starting point for schools in other states and will have to improve even more just to stay even.
• The ESEA sets new standards for the qualifications of teachers in schools that receive federal aid. Those standards threaten California's efforts to address the ever-growing shortage of new teachers.
• In the process of encouraging classroom aides to consider becoming teachers, the ESEA sets up hurdles that could chase those who don't wish to make such a career move out of the classroom entirely.
• The ESEA is setting up schools to fail and threatening schools with competition from the private sector if they do.
• While the mammoth ESEA trumpets major changes in public schools, it doesn't indicate how such changes will be paid for beyond the first year, if that. Whether the money is forthcoming or not, the ESEA includes an expanded role for the federal government in state education programs.

"Every time I read about the ESEA, I find out about something new in the legislation that scares me," says CTA Board member Lynette Henley. "It's a good thing CTA is training our members about ESEA and getting the word out to teachers so everyone can get a handle on what the ramifications are. It's so broad, I don't think any one person knows every piece of the new law."

Henley and fellow Board member Bob Nichols were recently appointed by the state Legislature's Senate Rules Committee to serve on the No Child Left Behind Liaison Team, which offers advice to the Legislature on ESEA implementation in California. Both also serve on CTA's ESEA Workgroup.

Using the expertise CTA's workgroup has amassed, this month's California Educatoris focusing on giving teachers an overview of the legislation and the implications for schools now and in the not-so-distant future.

What exactly is the ESEA?

The ESEA, the federal elementary and secondary education program, shapes educational policy and practice throughout the country. First passed by Congress in 1965 as part of President Lyndon Johnson's War on Poverty, it provides funding to improve the educational opportunities of poor and minority students. Prior to the passage of the ESEA, education was nearly the exclusive responsibility of state and local governments.

Every five or six years or so, the ESEA goes in for what might be described as a tune-up, although the most recent version might be considered more of a complete overhaul. Considered to be President George W. Bush's first major bipartisan victory, it was passed by Congress with little fanfare and signed into law on Jan. 8, 2002.

The final regulations were released on Nov. 26. The California Department of Education will likely release its final regulations regarding implementation sometime this spring.

The ESEA reauthorization means an extra $15 billion (a 41 percent increase) in federal funding for U.S. schools over fiscal year 2000. It increases federal funding for Title I schools in California by 20 percent and emphasizes early literacy with two voluntary programs: The Reading First Initiative ($900 million for fiscal year 2002) and Early Reading First ($75 million for fiscal year 2002). The programs are intended to make sure that all students achieve reading proficiency by the end of third grade. One result might be an increase in phonics-based scripted curriculum in schools.

Unbeknownst to the general public, the ESEA will change the lives of teachers and students in many ways over the next few years. The sweeping legislation mandates annual testing of children from third through eighth grades, dictates that all classroom instructors be "highly qualified" and certified for the subjects they teach, and sets a 12-year timetable for closing the achievement gaps between minority students from backgrounds of poverty and white students from more affluent backgrounds.

ESEA dictates policy on school safety, tutoring and school prayer. It calls for school districts to reform tenure systems, provide merit pay and test teachers in their content areas. It even tells schools that they must provide the names and addresses of secondary students to draft boards upon request. Along with the new requirements ESEA imposes on schools are stringent sanctions if these requirements are not met.

"The ESEA is like a Russian novel," Scott Howard, superintendent of Perry Public Schools in Ohio told delegates to the NEA Representative Assembly last July. "That's because it's long, it's complicated and in the end, everybody gets killed."

While U.S. Secretary of Education Rod Paige hails the ESEA as a way to increase student achievement, many teachers fear that it sets up schools for failure. The ultimate agenda of the ESEA, say doubters, is setting standards impossibly high in order to pave the way for vouchers, charter schools and the privatization of public schools.

How the ESEA will affect public schools throughout the nation and California will be determined over time. It depends upon whether the legislation is fully funded beyond the first year, how states comply with the law and how the federal government chooses to enforce the law. It may also depend upon whether President George Bush is a one-term or a two-term president and how long Republicans hold power in Congress.

Another accountability system

The ESEA legislation requires annual testing of children in reading and math in grades 3-8 and once in high school beginning in the 2005-06 school year. By 2007, states must implement science assessments for all levels. Also, states must participate in National Assessment of Educational Progress (NAEP) testing every other year.

The ESEA requires states to achieve 100 percent proficiency for all students in reading and math over the course of 12 years. It also requires states to set achievement standards or performance goals for all students in reading and math and to show the first increase in student performance after two years and then every three years.

Under ESEA, states may choose where to set the initial "proficiency bar" or "starting point" based on the lowest-achieving demographic subgroup or lowest-achieving schools in the state, whichever is higher.

Once the initial bar is set, the state is required to raise the bar in gradual but equal increments to reach the goal of 100 percent proficiency in 12 years.

The problem? California has already developed academic content standards that have been judged to be among the highest in the nation and has been moving to align curriculum, instruction, textbooks, standardized testing and professional development to these high standards. Years ago, California defined student proficiency as meeting requirements for the University of California system.

"California defined 'proficient' as meeting UC requirements, and as meeting the highest level of expectations in the country," says Joe Nunez, a member of the state Board of Education and a CTA regional manager. "We could have used any word, but that's our definition of 'proficient' in California. Who knew that Congress would use that word in a different way? Now we have to figure out how to comply with ESEA without backing away from our own high standards."

Nunez cast the sole dissenting vote when the state Board of Education choose to stand by its current definition of "proficient" despite the fact that test experts within the California Department of Education predicted that 98 percent of schools would fail to meet that target by 2014.

"Because we set very high standards, California will not be able to meet the growth benchmarks in testing," predicts Pixie Hayward Schickele, a CTA Board member who chairs the CTA ESEA Workgroup. "Texas and Arkansas, however, will easily meet the expected benchmarks on their tests because the standards adopted in these states are not as rigorous as California's.

"Arkansas, which ranks 49th nationally in the percentage of students who complete college, has no failing schools. Michigan, in contrast, has 1,513 failing schools. This kind of wide disparity in identifying failing schools underscores the limitations of the new law. Under the new ESEA, it doesn't matter how rigorous the standards are that each state adopts - the punishment for not meeting those standards is the same."

Because California set the bar extremely high for its own accountability program years ago - and decided in January to maintain those high standards by sticking with its definition of proficiency - there could be dire consequences including sanctions from the federal government and the loss of millions of dollars in federal funding.

"In some respects, we're being punished for having instituted our own standards and testing program," says CTA Board member Bob Nichols, who serves on CTA's ESEA Workgroup. "It's unfair that other states are able to begin this process and set their level of proficiency at a reasonable level. Because we began with high standards four years ago, we have to begin where we are now - and go even higher."

Overlapping programs

With so many existing accountability programs that offer rewards and sanctions, it's easy to get confused about what the ESEA means. The new ESEA regulations should not be confused with existing programs:

Under California's Immediate Intervention/Underperforming Schools Program (II/ USP), schools volunteer (or are volunteered) for participation in order to receive extra funding to increase achievement. II/USP schools hire external evaluators to come up with school improvement plans. Schools eligible for the program must be in the lower five deciles of academic achievement. If these schools fail to meet their growth targets, they face sanctions from the state including possible takeover. Approximately 122 schools that did not meet growth targets for two years in a row are now facing sanctions.

Under the Comprehensive School Reform Demonstration Projects (CSRD), a federal list of 8,600 Title I schools that failed to show improvement for two consecutive years was released last summer. The list, which is based on 1994 ESEA legislation, includes 1,009 California schools. California Department of Education auditors, paid with Title I money, have visited many of these schools. Under the new ESEA guidelines, students at these schools now have the option of transferring to higher performing schools within the same district - with the school district paying for transportation costs. Schools on this list must also foot the bill for students to receive "supplemental services" upon request, including after-school tutoring from private companies or nonprofit agencies, which may be religious or faith-based organizations.

Under the state's High Priority Schools Grant Program, participating schools receive $50,000 planning grants. The program was created by CTA-sponsored legislation, AB 961, to assist teachers and students in the state's lowest-performing schools - those ranked in the first or second deciles of academic performance.

"Everywhere I go, people are confused about these different programs," says Nunez. "I spend a great deal of time clarifying what they are. These programs seem to address different parts of the population, but they end up including a lot of the same schools. Maybe it's time to consolidate some of them."

"Ultimately, school performance is a resource problem," says Hayward Schickele. "This is why in California we refer to the schools at the lowest end of the achievement scale as the schools of greatest need. All of the research indicates that children and teachers in these programs are underfunded. They don't need yet another program or another mandate."

Nonetheless, the ESEA is here to stay.

"Our hope is that the ESEA can be implemented in a manner that will assure its success," says Hayward Schickele.

"The federal government must be willing to listen, respond to and respect the voice of all of us who work in the classroom. Ultimately, teachers are the ones who will make anything work."

Competing measures of growth

Presently California ranks schools based on the Academic Performance Index (API), which serves as a growth model for academic progress and as a basis for rewards and sanctions by the state. To date, the API has been based solely on standardized test scores in math and reading. Schools have already received last year's API scores; however, these scores will soon be updated to reflect standards-based tests that will be retroactively incorporated into the API for the 2001-02 school year. It is anticipated that scores will become lower rather than higher, since the California Standards Test is more difficult than the SAT-9.

Under the new ESEA legislation, Adequate Yearly Progress (AYP) will be used to measure academic growth.

Like the API, the AYP mandates that scores be broken down by overall student population, socioeconomically disadvantaged students and ethnic groups along with special education students, English language learners and migrant students. Schools that fail to measure up to the AYP will face sanctions from the federal government.

While California's English language learners are not allowed to take standardized tests in their native language under the current system, it would be possible for them to do so under AYP.

The API and the AYP are diametrically opposed, says Nunez. Under the ESEA reauthorization, all student groups at schools receiving Title I funds must achieve a "proficient" level on a state test. As State Board of Education President Reed Hastings has observed, "Today, not one school in Palo Alto, Beverly Hills, Marin or the entire state of California meets the level of 100 percent proficient."

Every subgroup in the AYP scoring system has to make progress every year or schools are subject to sanctions, whereas under the API, school population is more or less looked at as a whole. Another major concern is that some student subgroups - including special ed students and English language learners - may not be able to meet the proficiency goals set in the law.

Cynthia Peña, a member of the CTA Board and the CTA ESEA Workgroup, is concerned about how her special education students in Salinas will fare under the AYP. Under current law, many of her students are exempt from standardized testing and instead take "alternative assessments" based upon their Individual Education Plan (IEP). The new regulations mandate that any alternative assessment must be based on the grade that students are enrolled in. Under IDEA, special ed students are mainstreamed whenever possible with students their own age.

"I don't think my kids should be given the same test as regular education kids," says Peña. "It's unfair. They will never be able to pass that test. Their scores will lower the score of the entire school. Administrators will be saying they don't want special day classes on site. And the special ed kids will get so stressed out they will have physical symptoms, like headaches and stomachaches. Do we really want to make them sick with worry? I definitely think we should stick with the API rather than adopting the AYP."

The state Board of Education recently voted to leave the API intact, but also approved a plan to achieve "adequate yearly progress" to comply with ESEA. Both API and AYP scores will be reported.

"No matter what happens at the federal level, our own laws in California require us to proceed with our own school accountability system," says Justo Robles, manager of CTA's Instruction and Professional Development Department. "Over time, we have launched our own accountability system. We have made adjustments to ensure its success. We shouldn't have to go back and reinvent the wheel."

Draconian sanctions

Schools that don't show steady progress toward meeting proficiency goals face serious consequences under ESEA. Schools that fail to make AYP for two consecutive years enter the first year of the "school improvement" category. For the majority of schools in the U.S., the earliest this could happen would be the 2004-05 school year.

Once in the "school improvement" category, schools are required to:

• Prepare two-year improvement plans;
• Use 10 percent or more of Title I funds for professional development;
• Provide public school choice and pay transportation costs for students to attend schools of their choice within the same district;
• Use Title I funds to pay for supplemental tutoring services, which may include private companies, nonprofit agencies or faith-based or religious organizations.

The state's No Child Left Behind Liaison Team will be responsible for evaluating some of the school improvement plans as they come in. Henley, one of two classroom teachers on the committee, has taught for years at low-income schools and says that she looks forward to the challenge.

"My biggest goal will be to give the classroom teachers' perspective on the regulations and a realistic view of what could happen in a 6.5 hour day, and what works and what doesn't. Every student may have a different reason for not progressing; there is no 'one size fits all' reason. Sometimes you have to change things student by student; or it might be that a school's culture has to change."

Schools that fail to make AYP for four consecutive years will be placed in the "corrective action" category and must continue to offer public school choice and supplemental services.

Other sanctions include:

• Implementing new curriculum;
• Decreasing local decision making;
• Extending the school day or year;
• Replacing staff "relevant to failure."

If a school fails to make AYP for six years in a row, restructuring will take place in at least one of the following ways:

• It could be closed and reopened as a charter school.
• The principal could be replaced as could staff considered "relevant to the failure."
• The school could be turned over to a private company.
• The state could take over the school.

The new law also has sanctions regarding schools that are identified as dangerous. As a condition for receiving federal funds, every state education agency must develop a policy and objective criteria to identify "persistently dangerous" schools. Students attending such schools or who are the victims of a violent criminal offense will have the right to transfer to another public school within the same district. The district does not have to pay transportation costs.

Under the provisions of ESEA, some California schools could be labeled both academically failing and persistently dangerous.

Sanctions are in effect already

Some sanctions have already gone into effect for schools that are now in the first year of school improvement under the 1994 ESEA regulations. Earlier this year, 1,009 California schools identified as "failing" for two consecutive years were told that they must notify parents that students had the option of transferring to another district school - and that the district would pay transportation costs. Schools also had to notify parents that their children were eligible for "supplemental services" such as after-school tutoring from private companies or nonprofit agencies, including religious or faith-based organizations - also at the district's expense.

Strangely enough, many of the schools described as failing are surprised to learn they were on the list. The Orange County Register reports that a review of 48 schools in the area reveals "a system relying on information that is misleading, outdated or just plain wrong." Some of the schools on the list were not even ranked the worst in the state; 14 scored in the top 50 percent of schools based on Stanford 9 scores. A few on the list were even considered to be top schools with API rankings of 9 or 10.

Policy-makers at schools on the failing list are "scratching their heads," unsure of how to implement such large-scale programs with no extra money, notes the Oakland Tribune. For example, in Oakland, parents at 26 schools received letters from the district offering free tutoring, and the district held meetings to explain the law to parents. However, in what the newspaper describes as a "creative interpretation" of the law, tutoring is only available for fourth- and fifth-graders.

"In the midst of the biggest budget crisis in its history, the district will spend a couple of million dollars a year on tutors - a service it could provide much cheaper in-house," notes the Tribune.

Other districts are puzzled over how to fit more students into the higher-achieving schools - especially in districts where schools are filled to capacity or overcrowded. In the Sacramento City Unified School District, where five schools are subject to the new rules, implementing the rule has been difficult, since the district already buses students out of crowded schools into other schools. In Los Angeles, the rule affects approximately 150,000 students in 115 schools. Roy Romer, the district superintendent, recently said he will lobby Secretary of Education Rod Paige to set "rational goals" for implementation.

School officials are worried that the ESEA requirement could complicate school enrollment procedures and unfairly drain dollars from schools that are already struggling in the face of the state's $25-$30 billion revenue shortfall. However, it appears that a low percentage of parents have taken advantage of the transfer provision. For example, notes the Los Angeles Times, only 31 parents out of 6,700 who received notices in Long Beach requested transfers, with half of them withdrawn after being informed that the school they selected was full. Pasadena schools sent out letters to the parents of 3,000 students in six schools and received only 39 requests for a transfer. Three were granted and the rest rejected for lack of space.

The public school choice and transportation requirements of ESEA may present an especially difficult challenge for rural schools, which may be separated by large distances and rugged terrain. And finding supplemental tutors in remote areas may prove problematic as well.

School districts cannot use lack of capacity as a reason for not offering public school choice, the federal government announced in January. It is up to the school districts to build capacity, said Nina Rees, deputy undersecretary of education.

If districts don't have the money to build new schools or hire more teachers, they can build "virtual schools," where students can study on computers, she said. Rep. George Miller, a Democrat who helped write the ESEA, told the San Francisco Chroniclethat virtual schools as a solution "is an incredibly insulting answer that shows a complete lack of understanding of decisions parents have to make."