DIVISION OF LEGISLATIVE SERVICES
Implementing No Child Left Behind:
|AYP:||Adequate Yearly Progress|
|LEP:||Limited English Proficiency|
|NCLB:||No Child Left Behind|
|SOA:||Standards of Accreditation|
|SOL:||Standards of Learning|
Consistent with this nationwide movement, the Commonwealths efforts to improve public education in recent years have largely focused on standards, assessments, and accountability measures that seek to ensure educational excellence and opportunity for all students. From the 1989 Presidents Education Summit with Governors in Charlottesville, and three years earlier, the Governors Commission on Excellence in Education, to the 1996 Governors Commission on Champion Schools, came the challenge to invoke greater accountability in public education.9
But Virginia had already acknowledged the critical role of standards and assessments in ensuring educational accountability. Standards of Quality for public schoolsthe minimum requirements for quality public educationhad been adopted and periodically revised since 1971. Curriculum standardsevidenced in the Standards of Learning (SOL)followed, with major revisions adopted in 1995 and corresponding assessments operational in 1998. And, in 1997, substantial changes to the Standards of Accreditation (SOA) for public schools were implemented to set school performance benchmarks for schools and to provide assistance for struggling schools.10
While the Commonwealth
had clearly implemented a strong educational accountability initiativeone
recognized in spring 2003 as fifth in the nationcompliance with
various NCLB provisions would necessitate modifications in Virginias
current accountability practices.11 Despite delays in the issuance of
federal regulations addressing the act, the Commonwealth was able to craft
and submit its plan for implementing NCLBs various accountability
provisions by the acts January 31, 2003, deadline.12 Subsequent
amendments to federal regulations and changes in USDOE interpretation
of regulationsspecifically, those regarding adequate yearly progress
for schools and testing in 20022003 of students with limited English
proficiency (LEP) and students with disabilitiesprompted further
revisions to Virginias planthe Consolidated Application Accountability
Workbook. The Board of Education submitted its amended workbook to the
U.S. Department of Education on June 9, 2003, under strong protest,
as the revised regulations imposed retroactive application of future
policies.13 One day later, the USDOE approved Virginias plan.
Subsequent USDOE directives offered some flexibility in assessment policies
for determinations of AYP; however, this flexibility was limited to students
with disabilities and was not extended to the assessment of LEP students.14
Anchoring the acts accountability focus on standards, assessments, and consequences is the goal of ensuring that all children are proficient in reading and mathematics by academic year 2013201412 years from the statutes enactment. Arguably, this goal might also be seen as the impetus for a number of the acts voluntary initiatives, such as Reading First, Early Reading First, and various grants programs. Also supporting this objective are provisions addressing the capacity of schools to deliver quality instruction.15
The federal No Child Left Behind Act requires the adoption of and alignment between academic content standards and student achievement standards. The 1994 ESEA reauthorization required state standards for reading and mathematics; the 2001 reauthorization adds the adoption of science standards for the 20052006 school year. Student academic achievement standards must include, in addition to a basic achievement benchmark, two levels for high achievement (proficient and advanced).16
Where We Are:
A key component of NCLB is the requirement that states demonstrate adequate yearly progress (AYP). While the states may define what constitutes AYP, the federal statute dictates that determinations of AYP (i) address school, division, and state progress; (ii) be based primarily on the States academic assessments; and (iii) detail academic achievement goals to ensure that all students reach the proficient level by 20132014. While assessments are a primary indicator of AYP, states are required to include graduation rates as an indicator for high school AYP and attendance rates for elementary and middle schools; states are to choose an additional academic indicator for elementary school AYP. The act affords the states further discretion in adding other performance indicators.
In addition, in demonstrating AYP, states must ensure that 95 percent of all student subgroups are tested, including LEP students and those students in special education. While the states may establish particular achievement objectives for the various subgroups, they must nonetheless be designed to meet the 100 percent proficiency mark by the end of the 12-year implementation period. The states must also determine a baseline or starting point for determining AYP, as well as set a timeline, which is to include increasing performance objectives. The states may calculate AYP in reading and mathematics using either a two- or three-year performance snapshot.22
Where We Are:
Fulfilling the assessment prong of the traditional accountability model, NCLB directs the states, commencing with academic year 200506, to test annually all students in grades three through eight in mathematics and reading. Significantly, the statute permits reasonable accommodations for LEP students and students with disabilities. Annual testing in grades 1012 in math and reading is already required by the 1994 reauthorization. By 200708, science testing must be in place and administered not annually, but at least once in grades three through five, grades six through nine, and grades 10 through 12. Students who have been in American schools for three years must take the reading test in English; however, school divisions retain discretion to grant individual students a maximum two-years additional time to be assessed in another language.27 Further bolstering NCLBs assessment focus is the requirement that states participate in the National Assessment of Educational Progress (NAEP) every other year in grades four and eight in reading and mathematics, beginning 200203.28
Where We Are:
As part of its accountability focus, NCLB requires states and school divisions receiving Title I moneys to provide annual report cards, as of the 20022003 school year. The state report cards must include, among other things, (i) data on math and reading assessments, (ii) student performance data disaggregated by various subgroups, (iii) high school graduation rates, (iv) an elementary school performance indicator of the states choosing, (v) teacher qualifications, and (vi) evidence of AYP and identification of low-performing schools. School division report cards must identify the number and percentage of schools needing improvement and division and state comparative achievement data.35
Where We Are:
NCLB requires states to impose consequencesthe final component of the three-pronged accountability modelfor schools and divisions failing to meet AYP. All consequences, however, need not be negative; NCLB contemplates sanctions as well rewards for success and support for struggling schools. Among the sanctionsor corrective actionsfor schools failing to meet AYP requirements are school choice, technical assistance, staff and curriculum replacement, loss of school management authority, and, ultimately, school restructuring. Rewards may include recognition for improvement as well as for high performance; monetary awards or special designations may be granted.37
Where We Are:
To support the 2014 proficiency goal, NCLB also addresses quality instruction. The act directs states to ensure that, by the end of 200506, teachers in the core academic areas are highly qualified. In addition, beginning with the 20022003 school year, all new hires working in Title I-funded programs must be highly qualified. To satisfy the highly qualified classification, teachers must be fully licensed; emergency or similar temporary licensure will not suffice. In addition, new and current teachers must hold undergraduate degrees and meet various state testing and subject matter competency requirements. Ensuring accountability for highly qualified instructional personnel is a required annual report card from each state, detailing teacher qualifications and the percentage of classes not served by highly qualified teachers.40
Similarly, NCLB also seeks to ensure quality for paraprofessionals serving in Title I programs. All personnel hired following the 2001 enactment must have either (i) completed at least two years of postsecondary study, (ii) obtained at least an associate degree, or (iii) demonstrate skill in mathematics and reading instruction as evidenced by satisfactory performance on a state or local assessment. In addition, current paraprofessionals have four years in which to meet these requirements, and must already have a high school diploma (or its equivalent).41
NCLB also requires the disclosure of teacher qualifications, the percentage of teachers with emergency or provisional credentials, and the percentage of classes not taught by highly qualified teachers on the annual report card; additional teacher qualification disclosure may be required on certain circumstances. The act also directs states to submit a plan detailing initiatives designed to ensure that disadvantaged students are not more often served by poorly qualified or inexperienced personnel.42
Where We Are:
Still unclear are the costs of implementing NCLB. While Congress has provided $21.8 billion in 2003 to assist states in complying with the act, the states may have to supply an estimated combined total of $1.9 billion to $5.3 billion to implement only one portion of the actits annual testing provisions.46 Research suggests that although the passage of NCLB increased federal education funding levels by approximately $5 billion (1.1 percent) for 2002, the states will nonetheless likely incur significant additional costs to implement NCLB. Only NCLBs annual testing requirement enjoys its own line item in the federal budget; however, the costs of implementing other NCLB provisionsAYP determinations and technical assistance for struggling schoolswill also likely demand an undetermined amount of financial resources.47 While enhanced data collection systems may prove to be the most costly NCLB requirement, states have also been cautioned about the potential costs of maintaining highly qualified instructional personnel.48
The severe budget shortfalls that plague many states have prompted increased concerns regarding NCLB funding. Seemingly expressing little confidence in NCLBs language that additional state and local expenditures are not required, some states have contemplated forfeiting NCLB funds to avoid unforeseenand underfundedimplementation costs.49
2002-2003 NCLB Funds and Total Federal Funds
Improving Basic Programs Operated by LEAs
Teacher and Principal Training and Recruiting Fund
Enhancing Education Through Technology
English Language Acquisition
Safe and Drug-Free Schools and Communities
Part B, Subpart 2
Rural and Low-Income School Program
Federal Funds under ESEA 2001 (NCLB) for Virginia
Informational Memo No 120 (August 30, 2002) and Attachment Updated
January 31, 2003
How much the Commonwealth will have to spend to obtain these compliance-contingent federal funds is equally unclear. Although the 2003 Session allocated nearly $8 million in federal funds to begin development of assessments required under the reauthorized Elementary and Secondary Education Act, the need for additional test development funds-from the Commonwealthremains a possibility.50 And, while more than $50 million in NCLB Teacher Quality Grants will support Virginias efforts to train, recruit, and retain highly qualified teachers, the challenges of teacher shortages and hard-to-staff schools may demand an unforeseen infusion of additional state or local funds.51
Not to be underestimated is the cost of annual testing to the Commonwealth. Although experts have suggested that the addition of testing in grades four, six, and seven, supplementing Virginias current SOL assessments in grades three, five, and eight, may have diminishing marginal costs [as] the testing infrastructure is already in place, costs may nonetheless be significant for states that are currently testing in only three grades.52
Assistance for failing schools will also demand state dollars; Virginia has already provided its own funds to assist struggling schools. Created by Governor Mark Warner in 2002, the PASS (Partnership for Achieving Successful Schools) initiative was designed to aid schools that have been accredited with a warning through the efforts of parents, students, schools, business, and the community at large. The PASS initiative claimed $769,483 in general funds in the 20032004 budget. In 20012002, 34 of the more than 100 schools with the lowest accreditation rating were identified as PASS Priority Schools; these schools, which also receive Title I funds, were to receive additional focus. These schools were also subject to NCLB sanctions and each received $108,367 in federal school improvement and choice moneys in 2002. Federal Comprehensive School Reform grants also supported reform in 19 of the 34 schools in 2002.53
Other unclear costs for the Commonwealth include the expansion of data collected for the annual school performance report card. The act requires disaggregation of student data to reflect not only economic disadvantage, gender, racial/ethnic groups, and disabilities, but also LEP students and migrant students. Longitudinal data is also required. Preliminary estimates suggest that states may have to provide anywhere from five to ten dollars per student in K-12 to ensure compliance with NCLB data collection and storage requirements.54
While Virginias educational accountability system already places it in good stead to meet NCLB requirements, unforeseen costs remain. Although federal funds are available to support state compliance with the act, it is likely the Commonwealth will be required to allocate an underdetermined amount of additional funds to ensure full compliance.
|The author gratefully acknowledges the assistance of Superintendent of Public Instruction Jo Lynne DeMary and the staff at the Virginia Department of Education in the preparation of the Issue Brief.|
1 J.Jennings, Center on Education Policy, Commentary, From the Capitol to the Classroom: State and Federal Efforts to Implement the No Child Left Behind Act (September 2002)(hereinafter referred to as Capital to the Classroom)<http://www.ctredpol.org/pubs/nclb_ commentary_ jan2003.pdf>.
Conference of State Legislatures, Education Issues, No Child
Left Behind Act of 2001< http://www. ncsl.org/programs/educ/NCLBHistory.htm>;
D. Ravitch, Introduction, Brookings Papers on Education
Policy: 2000 at3 (2000); J. Jennings, Title I: Its Legislative
History and Its Promise, Phi Delta Kappan 516 at 516-517(March
2000) [hereinafter referred to as Title I]; U.S. Department of
Education, The No Child Left Behind Act of 2001Preliminary Overview
of Programs and Changes (hereinafter referred to as Preliminary)
<http://www.ed.gov/ offices/OESE/esea/progsum/>)[last modified July
11, 2002]; U.S. Department of Education, Guidance on Constitutionally
Protected School Prayer (February 2003)< http://220.127.116.11/VDOE/nclb/prayer.pdf>;
see generally, U.S. Department of Education, Companion Document:
Cross-Cutting Guidance for the Elementary and Secondary Education Act
(September 1996)< http://www.ed.gov/legislation/ESEA/Guidance/pt1.html>
3 J. Jennings, Title I: Its Legislative History and Its Promise, Phi Delta Kappan 516 at 516-517; 519-522 (March 2000) [hereinafter referred to as Title I]; see also, U.S. Department of Education, The No Child Left Behind Act of 2001Preliminary Overview of Programs and Changes <http://www.ed.gov/offices/OESE/esea/progsum/>[last modified July 11, 2002].
to the Classroom, supra note 1, at 3.
5 J. Jennings, Title IA Success, Education Week (January 26, 2000); U.S. Department of Education, FY 2000 Title I Allocations to States for School Year 2000-01 (Based on Department of Education Appropriation Act, 2000 P.L. 106-113)<http://www.ed.gov/offices/OUS/Budget00/ us00.html>[last updated November 22, 2000]; U.S. Department of Education, Title I, Part A ProgramImproving Basic Programs Operated by Local Educational Agencies (Title I Basic Grants, Concentration Grants, Targeted Grants, and Education Finance Incentive Grants)(hereinafter referred to as USDOE)<http://www.ed.gov/offices/ OESE/SASA/cepprogresp.html> [last modified July 8, 2003]; U.S. Department of Education, Fact Sheet on Title I, Part A, August 2002 <http://www.ed.gov/offices/OUS/PES/esed/title_i_fact_sheet. doc>
6 Basic Grants are available to divisions having at least 10 eligible children, if that number amount exceeds two percent of the divisions school-age population. Divisions in which there are at least 6,500 eligible children, or in which the number of eligible children surpasses 15 percent of the school age population receive Concentration Grants. Targeted Grants are similarly calculated, but are a weighted to ensure that those divisions with higher concentrations of impoverished students receive more funds. Finally, Education Finance Incentive Grants are calculated to incorporate state per-pupil expenditures and equalization of expenditures among school divisions. U.S. Department of Education, Archived Information, Title I Grants to Local Education Agencies < http://www.ed.gov/offices/OUS/title1desc.html>[last modified November 22, 2000); USDOE, supra note 5.
7 Virginia Department of Education, Office of Program Administration and Accountability, Summary of Federal Elementary and Secondary (ESEA) Funds Awarded Virginia (August 2003).
8 U.S. Department of Education, Planning and Evaluation Service, State Education Indicators with a Focus on Title I, 1999-2000 (Virginia) (2002)< http://www.ed.gov/offices/OUS/PES/esed/2002_indicators/virginia/virginia.html>[last modified December 19, 2002]; Virginia Department of Education, Office of Program Administration and Accountability (August 2003).
9 See generally, Interim Report of the Commission on Educational Accountability, Senate Document No. 52 at 16-18 (2000)[hereinafter referred to as SD 52].
10 See generally, K. G. Harris, Division of Legislative Services, The Standards of Quality at 7; 13-15; 25-28 (1999); see also, SD 52, supra, at 16, 17, 20.
11 The Princeton Review, Testing the Testers 2003: An Annual Ranking of State Accountability Systems Executive Summary<http://www.princetonreview. com/footer/testingTesters.asp>. According to the Princeton Review rankings, no state with the exception of Virginiareceived more than one A among the four major criteria; Virginia received two.
12 Capital to the Classroom, supra note 1, at 6; Virginia Board of Education, Resolution on Testing Policies in Effect for the 2002-2003 Academic Year (April 29, 2003).
13 Letter of Mark C. Christie, President, Virginia Board of Education, Virginia Consolidated State Application Accountability Workbook, Amended June 9, 2003 (June 9, 2003).
14 Virginia Department of Education, Virginia Implements No Child Left Behind [hereinafter referred to as Virginia Implements] <http://18.104.22.168/VDOE/nclb/#teachers>; Letter of U.S. Secretary of Education Rod Paige to Chief State School Officers regarding appropriate inclusion of students with disabilities (June 27, 2003)[hereinafter referred to as Paige Letter].
15 Education Commission of the States, No State Left Behind: The Challenges and Opportunities of ESEA 2001 at 4; 26; 28; 30; 38 (March 2002)[hereinafter referred to as ECS]; Virginia Implements, supra; U.S. Department of Education, The No Child Left Behind Act of 2001: Preliminary Overview of Programs and Changes <http://www.ed.gov/offices/ OESE/esea/progsum/title1a.html> [last modified July 11, 2002].
16 ECS, supra, at 3.
17 1986 Acts of Assembly, c. 555.
18 K. Harris, Division of Legislative Services, The Standards of Quality (1999)[hereinafter referred to as SOQ]; Va. Code § 22.1-253.13:1 B (2003).
Code § 22.1-253.13:3 (2003).
20 Virginia Department of Education, Notice, Virginia Standards of Learning Assessments - Passing Scores Established by the Board of Education <http://www.pen.k12.va.us/VDOE/News/solpass.html>[October 10, 2002].
21 Virginia Consolidated State Application Accountability Workbook, Amended June 9, 2003 at 15 (2003) [hereinafter referred to as Workbook].
22 ECS, supra note 15, at 4-5; U.S. Secretary of Education Rod Paige, Preliminary Guidance Regarding Adequate Yearly Progress (July 24, 2002)< http://22.214.171.124/VDOE/nclb/guidance/PreliminaryGuid-anceRelating toAdequateYearlyProgress. pdf>; Workbook, supra, at 55.
23 Workbook, supra note 21, at 12-14; Virginia Department of Education, Virginias NCLB Assessment and Accountability Plan, Powerpoint Presentation (March 2003)[hereinafter referred to as DOE]; Virginia Department of Education, Dr. Jo Lynne DeMary, Superintendent of Public Instruction, Virginias Implementation of No Child Left Behind Act of 2001: Where We Are Today, Powerpoint presentation [last updated March 7, 2003][hereinafter referred to as Where We Are].
24 Workbook, supra note 21, at 31-33.
Workbook, supra note
21, at 34-41.
26 Workbook, supra note 21, at 42.
27 ECS, supra note 15, at 10-11.
28 ECS, supra note 15, at 15.
29 SOQ, supra note 18, at 33-34; Interim Report of the Commission on Educational Accountability, Senate Document No. 52 at 19-22 (2000)[hereinafter referred to as SD 52].
30 Workbook, supra note 21, at 66.
31 DOE, supra note 23.
32 Workbook, supra note 21, at 48-49; Paige Letter, supra note 15.
33 Workbook, supra note 21, at 50; 8 VAC 20-131-30 G [last modified February 10, 2003].
34 DOE, supra note 23; Va. Code § 22.1-253.!3:3 H (2003); Virginia Department of Education, NAEP in Virginia
35 ECS, supra note 15, at 16.
36 8 VAC 20-131-270 [last modified February 10, 2003]; see also, Workbook, supra note 21, at 17-20.
37 ECS, supra note 15, at 19-22; 23-24.
38 Workbook, supra note 21, at 22; 8 VAC 20-131-310; 8 VAC 20-131-325 [last modified February 10, 2003].
39 8 VAC 20-131-325 [last modified February 10, 2003].
40 ECS, supra note 15, at 29-30; 33; 34; see generally, L. Rose and A. Gallup, The 34th Annual Phi Delta Kappa/Gallup Poll Of the Publics Attitudes Toward the Public Schools, Phi Delta Kappan (September 2002) <http://www.pdkintl.org/kappan/k0209pol. htm#1a>[last modified August 2002].
41 ECS, supra note 15, at 33.
42 ECS, supra note 15, at 34; see also, Where We Are, supra note 23.
43 Virginia Department of Education, Stepping Up to the Plate...Virginias Commitment to a Highly Qualified Teacher in Every Classroom, Report from the Committee to Enhance the K-12 Teaching Profession in Virginia at 5 (October 16, 2002)[hereinafter referred to as Plate]; see also, Where We Are, supra note 23; Virginia Department of Education, Summary of the Proposed Revisions to the Licensure Regulations for School Personnel (8 VAC 20-21-10 et seq.)(June 25, 2003) <http://126.96.36.199/VDOE/newvdoe/SummaryofProposed LicensureRegsforSchool Personnel.pdf>
44 Where We Are, supra note 23; Superintendents Memo No. 56, State Qualifying Score for the ParaPro Assessment for Instructional Paraprofessionals Supported by Title I, Part A, Funds (April 4, 2003).
45 8 VAC 20-131-270 A (h)[last updated February 10, 2003].
46 U.S. Department of Education, Funds for State Formula-Allocated and Selected Student Aid Program (compiled for posting on the WEB by the Budget Service on August 4, 2003); see also, Education law tries thin state budgets, CNN.com/Education (July 31, 2003)<http://www.cnn.com/2003/ EDUCATION/07/30/states.educa-tion.reut/index.html>
47 Senator Angela Monson, Oklahoma, National Conference of State Legislatures President and Speaker Martin Stephens, Utah, NCSL President Elect, Memorandum: Legal Questions Regarding No Child Left Behind (July 7, 2003).
48 J. Pettersen, National Conference of State Legislatures, No Child Left Behind: Fiscal Issues for the States at 2, 3 (July 2002)[hereinafter referred to as Fiscal Issues].
49 Association for Supervision and Curriculum Development, ESEA/NCLB Analysis, States Concerned About Budgetary Effects of NCLB (March 2003) <http://www.ascd.org/cms/index.cfm? TheViewID=1676&ContentBorderDisplay=1&ptitle=ESEA% 20Analysis%20-%20March%202003>; K. Masterson, Associated Press, Lack of Cash Could Leave Many Children Behind (April 17, 2003)<http://www.interversity. org/lists/arn-l/archives/apr2003/msg00297. html>
Acts of Assembly, c. 899, § 1-54, Item 138 E 2.
51 2003 Acts of Assembly, c. 1042, § 1-54, Item 147 C 17.
52 Fiscal Issues, supra note 48, at 6.
53 2003 Acts of Assembly, c. 1042, § 1-54, Item 142 H; Governors Partnership for Achieving Successful Schools, PASS Initiative Goals <http://www.passvirginia.org/ GoalsandIssues/goals.cfm>; Governors Partnership for Achieving Successful Schools, PASS Partnerships <http://www.passvirginia.org/Partnerships/partners.cfm>; Virginia Department of Education, News Release, 34 Virginia Title I Schools to Receive $3.7 Million in Federal Choice and Improvement Funds (July 19, 2002)
54 Where We Are, supra note 23; Fiscal Issues, supra note 48, at 7, 8.
Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor
For information contact:
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
© Commonwealth of Virginia.