'Flexibility' provides too little too late for many schools

When a flu epidemic strikes a school, it puts fear in the hearts of staff members. It's not the fear of contracting an illness; it's fear of not making Average Yearly Progress under No Child Left Behind (NCLB).

If fewer than 95 percent of students in any subgroup take the standardized test, the entire school can be labeled as "failing." It is estimated that more than 1,700 schools in California missed the AYP benchmark in 2003 because they tested fewer than 95 percent of the students in every subgroup.

Noting that almost every state has schools failing to make AYP on participation alone, the U.S. Department of Education has agreed to be flexible. It has instituted a new policy that allows states to average participation rates over a two- or three-year period if the school missed the mark in its most recent testing. The new policy also permits a student to be excluded from a school's AYP calculation if there is a serious medical emergency.

Unfortunately, since it is not retroactive, the revision comes too late to help many schools.

"If you can't apply those rules retroactively, schools that were hurt by the past process will continue to be hurt, while other schools won't be," says Bob Nichols, a CTA Board member who serves on CTA's NCLB workgroup. "The rules may fix things for the future, but they don't correct the mislabeling and harm that was done in the past."

It's just one of several NCLB amendments that seem to be more window dressing than honest flexibility.

"What we've seen is some nibbling around the edges in the name of flexibility, but the simple fact is we don't have flexibility on a state-by-state basis," says CTA President Barbara E. Kerr. "What we have is a one-size-fits-all program out of Washington, D.C."

Rep. George Miller (D-Calif.), one of the principal authors of the law, has blasted the federal government's refusal to make changes retroactive. "Thousands of schools that fully meet the standards in the new regulations will have been misidentified as not making sufficient academic progress. This misidentification will hurt the morale of teachers and principals who have worked hard to meet the challenge of NCLB. Even worse, it will waste resources that should be delivered to the schools that do require improvement."

Miller and co-author Sen. Ted Kennedy (D-Mass.) have proposed legislation that would allow schools to request a review of their AYP status for the 2002-03 school year based on the Department of Education's changes to NCLB regarding students with disabilities and those not proficient in English.

"I don't know that the law is fixable," says Nichols. "We need more than administrative tinkering. We need major changes in the law. We also need a new secretary of education and a new president to change this law."

Following are some of the ways in which the law has been changed and how schools are affected by them.

Pat O'Connor, a teacher at Silverado Middle School in Napa, gave standardized tests in English last spring to students newly arrived from Mexico. "It was very hard," she recalls. "But we needed them to take the test because we are an underperforming school and we needed 95 percent of all students to take the test. I told them to just do their best. I told them not to feel bad about it."

NCLB has been changed so that teachers like O'Connor are no longer required to give English language learners (ELL) their state's regular reading test if these students have attended U.S. schools for less than a year. During the first year of enrollment, students may take an English proficiency test in lieu of the reading test required under NCLB. However, schools must still give those students the mathematics test.

In another revision, states will be allowed to "count" students who have become proficient in English within the past two years in their calculations of Adequate Yearly Progress for ELL students. Prior to this, schools did not receive credit for students whom they helped become proficient in English, because they were automatically moved out of that subgroup even though they were the most likely to do well on the test.

O'Connor and other teachers say one year is not enough time for students to take a standardized test in English and be considered "proficient."

"It's like me going to Japan and taking a test in Japanese after just one year," says O'Connor, a Napa Valley Educators Association member who serves on CTA's Language Acquisition Committee. "It's very difficult for ELL students to take these tests. They want to do well. They sit here the whole time trying to decipher things. They know we are trying to raise scores at this school and they have heard the motivational talks. So they are trying hard and don't want to be responsible for a school's low scores."

"I think it's a step in the right direction, but it's definitely not enough time," agrees Esteban Ramirez, a member of Windsor District Educators Association who serves on the Language Acquisition Committee. "I would challenge anyone to learn a new language in just one year. I would say students need at least three years minimum before they have to take a language or reading test."

O'Connor notes that the Latino population has grown in her district, as it has throughout the state. When she began teaching 11 years ago, 10 percent of the student population was Latino, compared with 41 percent at present. According to a study on "Penalizing Diverse Schools" from the research group Policy Analysis for California Education (PACE), schools with the largest concentrations of Latino children from disadvantaged families face the worst odds of hitting Average Yearly Progress targets under NCLB.

Students who do not understand English may also be uneducated in their own language, says O'Connor. "We have kids from rural areas who haven't had schooling. They should be in the seventh grade, but they can't read and write their own name in Spanish, so we have to start from scratch."

Requiring English language learners to take the math portion of the standardized test is still extremely unfair, says Ramirez. "It doesn't do much good to ask students to take a math test if they can't read the problems. The majority of the math problems are word problems; there aren't many straight computation questions."

Both O'Connor and Ramirez consider it a positive step to allow schools to receive credit for students they have helped become proficient in English. However, because the law is not retroactive, they fear it is too late for many schools to be helped by these changes.

"We should be using testing as a tool to help us teach. The scores should be used to improve teaching, learning and student performance, rather than just as a means to judge a school as 'failing,'" says Ramirez.

In Silvia L. DeRuvo's special education resource room, students struggle with basic reading and math problems. One girl has trouble writing. A child with memory problems has difficulty with spelling and writing. Some need calculators or computers that check spelling.

Despite their hard work — and the progress they have made — these students will likely be judged "below basic" on standardized tests and could bring down the scores of their entire school under NCLB. Although the law allows them to use calculators or spelling checkers in class, use of these "modifications" while taking standardized tests will automatically result in their being judged as "below basic" and counted against the school's effort toward making Adequate Yearly Progress (AYP).

Under NCLB revisions issued this year, states and districts can use other means besides grade-level standards to test students with special needs who are not able to take grade-level tests even with modifications. However, under the NCLB revision, only up to 1 percent of students in each grade level can take the California Alternate Performance Assessment (CAPA) and have their scores count.

If districts can prove they have larger student populations with disabilities and have effectively designed and implemented assessment programs for these students, they can make an appeal, but it can be a cumbersome process.

Because special education students make up 10 percent of the general student population and only 1 percent of students can take alternate assessments, this revision puts schools in a bind as to whose scores they should count as proficient, says DeRuvo, president of the California Association of Resource Specialists and Special Educators. It also fails to address the needs of students with mild to moderate disabilities, who are too advanced for CAPA but unable to do well on regular, grade-level standardized tests without modifications.

"Personally, I think it doesn't go far enough, because you have 9 percent of special education students who are very possibly going to score far below basic," says DeRuvo, a resource specialist at Billy Mitchell Elementary School in Sacramento and a teacher at CSU-Sacramento. She's a member of the San Juan Teachers Association and the California Faculty Association chapter at her college.

Before the 2002-03 school year, students could be tested out of grade level as long as they didn't go more than two levels below their grade. For example, an eighth-grade student reading at the fourth-grade level would be allowed to take a sixth-grade reading test. Also, "partial testing" was allowed, where students with reading disabilities, for example, could opt out of the reading portion of the test and take only the math portion. The discontinuation of these accommodations led to many special education parents deciding to exempt their student from the tests, which lowered AYP for the entire school and sometimes the entire school district.

"Parents said, 'Forget this — why should I have to deal with the negative side effects of having my child frustrated at being asked to do something he can't do?' " says DeRuvo. "And once this happened, many districts didn't meet their AYP because they didn't have 95 percent of that subgroup population tested. But you can't take rights away from parents, and they have the right to exempt their children."

Under the revised regulations, states can again give special education students out-of-grade-level assessments; however, it counts toward the 1 percent cap. And many schools would rather save that 1 percent for the most severely cognitively disabled students, not those who are merely a few grade levels behind.

Most special education students are too advanced to take CAPA, say special education teachers. Instead, they should be allowed to take out-of-grade-level tests or regular tests with modifications. (Students who need accommodations are not penalized under NCLB, but those who need modifications are. Accommodations may include extra time for the tests or having someone read the math portion aloud. Modifications include allowing students to use calculators or spelling checkers.)

"In my opinion, we should allow a certain number of kids to take the test with modifications," says NEA Director Diana Garchow, a resource teacher who chairs CTA's Individuals with Disabilities Education Act (IDEA) Task Force. "But if they take tests with modifications, their tests are discounted."

Even when an IEP (Individual Education Plan) team decides that students must be allowed modifications, students who use them during tests are automatically scored below proficient. In some districts, students are not allowed to use modifications at all during tests, which special education teachers say is against the law.

"Schools are torn between doing what the law says and meeting children's needs," says Garchow. "If you have a child identified as being ADHD and you make modifications so he can learn in the classroom, why is it fair for him to take a test without recognizing any of the disabilities you recognized before?"

Garchow is angry about the impact the law is having on special ed students, who may be viewed as "a problem" because of their test scores. "God doesn't make mistakes, and these children are not mistakes," she says. "They have a right to achieve something instead of being called failures. And how would you feel if you were a kid who failed and, on top of everything else, you were told you made your entire school fail? That happened in my district, because the district's special education kids didn't make AYP, so our district didn't make AYP."

In other states, school districts are dealing with the frustration by trying to circumvent the rules. Several states have included special ed students with the much larger "children of poverty" subgroup, which serves as a way to mask the lack of growth in the special education subgroup, according to a report in the New York Times.

Garchow knows of one school where a principal urged the parents of a special ed student to send the child to another school that was already labeled as failing. Other parents of special ed students have been urged to leave the district altogether. "They don't say, 'We don't want you.' But they say, 'This district has other kids like your child and can do a better job.' Schools are under a great deal of pressure to raise test scores and AYP."

CTA Board member Cynthia Peña, who teaches special education in Salinas, has seen the same thing happening at her school site. Bardin Elementary School in the Alisal Union Elementary School District has three special day classes, while other sites have just one. Teachers there have asked that the special education students be evenly distributed among all of the district's schools so that no one school is penalized with lower scores. "It's not that they don't want the students, but they feel it's not fair to have three special day classes at one site," says Peña.

For her students, it's just more stress that they don't need. "It's very, very difficult for my students to take these tests. They are already two to three years behind. They are really frustrated. A lot of them get headaches and stomachaches when I give them the test. I just don't think this law is fair to these children."