DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 34                  September 2003

Implementing No Child Left Behind:

Virginia Revisits
Educational Accountability

K.G. Harris, Senior Attorney

The enactment of the federal No Child Left Behind Act (NCLB) in January 2002 has prompted many states to strengthen—and, in some cases, establish—educational accountability in public education. Invoking requirements for standards, assessments, and consequences, the federal law has challenged states to adopt annual testing practices, hire highly qualified instructional personnel, and improve the academic achievement of all students. Having established educational standards for its public schools more than 30 years ago, and, in the past decade, strengthened accountability for public schools by implementing regular assessments for its Standards of Learning and revising the Standards of Accreditation for public schools, the Commonwealth stands in good stead to maintain its eligibility for the federal education funds provided by the act. While the federal law requires the Commonwealth to make modifications to its assessment policies and procedures prescribed in its current accountability system, its Consolidated State Application Accountability Workbook for NCLB funding was approved by the U.S. Department of Education (USDOE) in spring 2003.

Still unclear are the costs of implementing NCLB. While Congress has provided $24 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 act—its annual testing provisions. Although Virginia has already implemented many initiatives required by the act, it remains unclear how much money the Commonwealth will have to spend to obtain the compliance-contingent federal funds for public education. Of particular concern are the potential costs of additional assessments, the training and employment of highly qualified teachers and instructional paraprofessionals, and enhanced data collection and reporting systems.

From ESEA to NCLB: A Brief History

In January 2002, President George W. Bush signed into law the reauthorization of the Elementary and Secondary Education Act (ESEA), titled No Child Left Behind (NCLB). While tracing its roots to the original ESEA, enacted in 1965, NCLB represents far more sweeping and detailed initiatives to improve public education than did its 40-year old predecessor.¹

A product of the Johnson administration’s War on Poverty, the original ESEA granted $2 billion to address equality in educational opportunity. Its key component, Title I, was designed to target disadvantaged children through grants of federal aid to support compensatory education initiatives. Reauthorized approximately every five years, ESEA has clearly evolved throughout its history. Its metamorphosis from an initiative primarily targeting social justice concerns within education to legislation that blends the initial purpose with educational accountability, school safety, professional development, charter schools, and school prayer arguably reflects the national education reform movement generally, as well as larger societal concerns.²

Educational accountability—standards, assessments, and consequences—filtered into ESEA in its 1988 reauthorization, which included provisions addressing school and student performance. Consistent with the various educational accountability concepts offered in 1991 by the first Bush administration in the national education strategy, America 2000, and enacted in the 1993 Goals 2000 legislation of the Clinton administration, the 1994 reauthorization of ESEA (and Title I) also included requirements for enhanced academic standards and assessments as well as increased state and local discretion in the expenditure of federal education funds.³

It is the 2002 reauthorization, however, that has significantly expanded the federal role in public education. The 669-page act is not limited to schools receiving federal Title I moneys; it addresses academic achievement, teacher quality, and accountability for all students and schools. This comprehensive focus, however, does not neglect disadvantaged students; schools must work to eliminate the academic achievement gap between majority and minority student groups.⁴

Title I Generally

Described as “the soul of the Elementary and Secondary Education Act,” Title I is the largest source of federal education aid and provided approximately $10 billion to 47,600 qualifying schools nationwide (58 percent of all public schools) in 2001–02. Nearly 15 million public and private school children were Title I beneficiaries; 64 percent of these students were in grades one through six. In schools with higher percentages of low-income students, these funds support school-wide initiatives; targeted assistance programs—those addressing particular students—are implemented in schools with lower percentages of high-poverty pupils. While instruction claims more than three-quarters of Title I moneys, states retain a fair amount of discretion in the choice of initiatives to be funded.⁵

The federal government typically allocates Title I moneys on the basis of numbers of children from low-income households in each school division, adjusted by state per-pupil expenditures. The distribution of funds within school divisions is further delineated by four different grant formulas that address, among other things, concentrations of impoverished students.⁶ In 2002–03, Virginia school divisions received more than $172 million in Title I (Part A, Improving Basic Programs) moneys.⁷ In 1999–2000, 732 of the Commonwealth’s 1,816 public schools received Title I moneys. This number increased to 785 in 2002–2003.⁸

Implementing NCLB

Consistent with this nationwide movement, the Commonwealth’s 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 President’s Education Summit with Governors in Charlottesville, and three years earlier, the Governor’s Commission on Excellence in Education, to the 1996 Governor’s 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 schools—the minimum requirements for quality public education—had been adopted and periodically revised since 1971. Curriculum standards—evidenced 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 initiative—one recognized in spring 2003 as fifth in the nation—compliance with various NCLB provisions would necessitate modifications in Virginia’s 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 NCLB’s various accountability provisions by the act’s January 31, 2003, deadline.¹² Subsequent amendments to federal regulations and changes in USDOE interpretation of regulations—specifically, those regarding adequate yearly progress for schools and testing in 2002–2003 of students with limited English proficiency (LEP) and students with disabilities—prompted further revisions to Virginia’s plan—the 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 Virginia’s 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

NCLB’s Education Accountability
Provisions and Virginia’s Compliance

Anchoring the act’s accountability focus on standards, assessments, and consequences is the goal of ensuring that all children are proficient in reading and mathematics by academic year 2013–2014—12 years from the statute’s enactment. Arguably, this goal might also be seen as the impetus for a number of the act’s 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

Standards for Schools and Students

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 2005–2006 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:

• Curriculum standards. The Standards of Learning, Virginia’s curriculum standards or “educational objectives” required by the Standards of Quality, can be traced to an objective adopted by the Board of Education in June 1981; statutory authority clarified this objective in 1986.¹⁷ In June 1995, the Board of Education developed and adopted revised Standards of Learning in the core subject areas of mathematics, science, English, and history and social science. State statute requires regular revision of these four “core” subjects occur at least once every seven years.¹⁸
• Student academic achievement benchmarks. Virginia’s Standards of Accreditation for public schools include “end-of-course or end-of-grade tests for various grade levels and classes, as determined by the Board, in accordance with the Standards of Learning. These Standards of Learning assessments shall include, but need not be limited to, end-of-course or end-of-grade tests for English, mathematics, science, and social studies.”¹⁹ In Virginia, students who pass the SOL assessments may obtain one of two, not three, scores: “pass (proficient)” or “pass (advanced).”²⁰ The USDOE approved this variation in July 2002.²¹

Assessment of Schools and Students:
Adequate Yearly Progress

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 State’s academic assessments”; and (iii) detail academic achievement goals to ensure that all students reach the proficient level by 2013–2014. 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:

• Adequate yearly progress. Consistent with the NCLB mandate, Virginia has based its AYP definition on performance on SOL tests in reading and mathematics, graduation rates, and attendance rates (elementary schools).²³ Virginia has set starting points based upon 2001–2002 scores for SOL assessments for math and reading, including certain substitute and alternate assessments. School-wide, rather than grade-level specific, pass rates are used for math and reading. Virginia determined that three-year “trend data” offered the most accurate indication of student performance.²⁴ Annual, measurable objectives, as well as interim goals, have been set and accepted by USDOE.²⁵ Disaggregated data will be used to determine AYP for each student subgroup, as required by NCLB.²⁶

Annual Testing and NAEP

Fulfilling the assessment prong of the traditional accountability model, NCLB directs the states, commencing with academic year 2005–06, 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 10–12 in math and reading is already required by the 1994 reauthorization. By 2007–08, 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 NCLB’s 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 2002–03.²⁸

Where We Are:

• Annual testing. Virginia implemented the first SOL assessments in the core subjects of English, mathematics, science, and social studies in the 1997–98 school year for grades three, five, and eight. End-of-course tests are also in place at the high school level.²⁹ To meet the federal annual testing requirement, Virginia will add reading and math tests for grades four, six, and seven in the 2005–06 school year.³⁰
• Science testing. Virginia’s existing Standards of Learning assessments in science in grades three, five, and eight, and end-of-course science tests for high school already satisfy the NCLB alternate-year science testing requirement.³¹
• Testing students with disabilities. Students with disabilities who are receiving special education will be tested either through the SOL assessment initiative, with accommodations as may be necessary, through the Alternate Assessment Program, as provided in the student’s Individualized Education Program required by the Individuals with Disabilities Education Act, or through alternate assessments to be developed for students who cannot participate in the SOL assessments, even with accommodations. Although 95 percent of all subgroups, such as special education students, must participate in state assessments, Virginia will not adopt policies limiting the number of students with the most severe cognitive disabilities taking alternate assessments, as the percentage is not expected to exceed the federal requirement. Scores from the SOL tests and alternate assessments for this group of students will be included in calculating AYP.
  
  Significantly, Virginia has agreed to two NCLB mandates in this area “under protest.” First, the Commonwealth protested the requirement, beginning in 2002–03, to limit to one percent the number of scores from alternate assessments for students with severe cognitive disabilities that can be considered “proficient” for purposes of AYP calculation. In addition, Virginia indicated it would implement under protest the requirement that, for 2002–03, students with disabilities who participate in local testing pursuant to an IEP be deemed non-participants in calculating testing participation. In response to public comment regarding proposed implementing regulations, the U.S. Secretary of Education communicated to chief state school officers in June 2003 specific “transition policies” addressing AYP determinations for 2003–2004.³²
• Testing LEP students. In 2003–04, Virginia will test all LEP students; those in grades three through eight and identified as having lower LEP levels will take either the SOL test, with accommodations as may be appropriate, or a different state-approved assessment. Students taking the state-approved assessment can only do so for a maximum of three consecutive years. Again, as with testing for students with disabilities, it is the calculation of AYP and the participation of LEP students that has prompted protest from Virginia. For 2002–03, Virginia must deem LEP students granted a one-time exemption from SOL testing, as provided in the SOA, as “non-participants” in state testing.³³
• Biennial NAEP testing. Virginia has participated in NAEP since 1990; in 2002–03, a sampling of students in grades four and eight were tested in math and reading.³⁴

Annual Report Cards

As part of its accountability focus, NCLB requires states and school divisions receiving Title I moneys to provide annual report cards, as of the 2002–2003 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 state’s 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:

• Report cards. Virginia already distributes annual report cards, pursuant to the Standards of Accreditation, which direct schools to provide annually to parents and the community a “School Performance Report Card.” Incorporating data reflecting a three-year period, the report card must include (i) SOL assessment scores, as well as scores for those literacy and numeracy tests required for the Modified Standard Diploma, for the school, school division, and state; (ii) the percentage of students tested, disaggregated to reflect LEP students and students with disabilities; (iii) the percentage of students who are otherwise eligible, but do not take, the SOL tests due to enrollment in an alternative, or any other program not leading to a Standard, Advanced Studies, Modified Standard, or International Baccalaureate Diploma; (iv) the academic performance of LEP students and students with disabilities; (v) the school’s accreditation rating; (vi) student attendance rates; (vii) certain school safety information; and (viii) teacher qualifications and experience, including the percentage of teachers teaching in the area for which they are endorsed.
  
  Report cards for secondary school must include information regarding (i) student enrollment and, where appropriate, testing in Advanced Placement, International Baccalaureate, academic year Governor’s Schools, and college-level programs; (ii) percentages of students receiving diplomas, certificates, failing to graduate, and dropping out; and (iii) percentages of students in alternative, non-degree track programs.
  
  The Commonwealth makes school, division, and state report cards publicly available through the Internet. More complete data for 2002–2003, including various disaggregated data and more specific teacher qualification data (such as percentages with provisional or emergency credentials), will be posted by the beginning of the 2003–04 school year, if not sooner.³⁶

Consequences:
Sanctions, Recognition, and Support

NCLB requires states to impose consequences—the final component of the three-pronged accountability model—for 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 sanctions—or “corrective actions”—for 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:

• Sanctions for failing schools. While the Commonwealth has already created sanctions and assistance initiatives for struggling schools within the SOA, these sanctions are based upon school accreditation ratings, rather than AYP, and include a school academic review process and improvement plan. To comply with NCLB, Virginia has indicated in its approved Consolidated State Application Accountability Workbook that it will identify for corrective action those schools or divisions failing to make AYP in the same subject area for two consecutive years. In 2002–03, a total of 34 Virginia Title I schools were sanctioned, consistent with NCLB.³⁸
• Rewards. Rewards for school performance are already contemplated in the Standards of Accreditation. The State Board of Education may recognize individual schools through public announcements, tangible rewards, waivers of certain regulations or certain reporting requirements, and other methods. In addition, local school boards must adopt policies for individual school recognition through “public announcements, media releases, participation in community activities for input purposes when setting policy relating to schools and budget development, as well as other appropriate recognition.” Additional rewards—in the form of waivers from certain regulatory requirements—may be granted to applicant schools. Finally, the Governor’s Award for Outstanding Improvement is given to “any school that raises its rating from Accredited with Warning to Fully Accredited in one year will receive this award when it was 10 percentage points or more below the performance level to be rated Fully Accredited.”³⁹

Qualifications for Teachers and Paraprofessionals

To support the 2014 proficiency goal, NCLB also addresses quality instruction. The act directs states to ensure that, by the end of 2005–06, teachers in the core academic areas are “highly qualified.” In addition, beginning with the 2002–2003 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:

• Highly qualified teachers. Anticipating a critical teacher shortage in the first decade and a half of the new millennium as well as the impending requirements of NCLB, Virginia has begun the regulatory revision process to address teacher licensure. Proposed changes would eliminate local licensure, revisit alternative routes to licensure, and incorporate the “highly qualified” teacher requirements imposed by NCLB.⁴³
• Paraprofessionals. It was anticipated the ParaPro Assessment, developed by the Educational Testing Service, would be available over the Internet in January 2003 for teacher aide candidates. At its March 25, 2003, meeting, the Board of Education approved the test for Virginia teacher aides and set a cut score of 455.⁴⁴
• Teacher Qualification Disclosure. The current school report card required by the SOA includes “information related to the qualifications and experience of the teaching staff including the percentage of the school’s teachers endorsed in the area of their primary teaching assignment.”⁴⁵

The Costs of Implementation

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 act—its 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 NCLB’s annual testing requirement enjoys its own line item in the federal budget; however, the costs of implementing other NCLB provisions—AYP determinations and technical assistance for struggling schools—will 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 NCLB’s language that additional state and local expenditures are not required, some states have contemplated forfeiting NCLB funds to avoid unforeseen—and underfunded—implementation costs.⁴⁹

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 Commonwealth—remains a possibility.⁵⁰ And, while more than $50 million in NCLB Teacher Quality Grants will support Virginia’s 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 Virginia’s 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 2003–2004 budget. In 2001–2002, 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 Virginia’s 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.

Notes

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>.

² National 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 2001—Preliminary 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://141.104.22.210/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 2001—Preliminary Overview of Programs and Changes <http://www.ed.gov/offices/OESE/esea/progsum/>[last modified July 11, 2002].

⁴ Capital to the Classroom, supra note 1, at 3.

⁵ J. Jennings, “Title I—A 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 Program—Improving 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 division’s 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 Virginia—received 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://141.104.22.210/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).

¹⁹ Va. 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://141.104.22.210/VDOE/nclb/guidance/PreliminaryGuid-anceRelating toAdequateYearlyProgress. pdf>; Workbook, supra, at 55.

²³ Workbook, supra note 21, at 12-14; Virginia Department of Education, Virginia’s 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, “Virginia’s 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.

²⁵ 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
<http://www.pen.k12.va.us/VDOE/Assessment/NAEP/NAEPinVirginia.htm>

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 Public’s 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...Virginia’s 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://141.104.22.210/VDOE/newvdoe/SummaryofProposed LicensureRegsforSchool Personnel.pdf>

⁴⁴ Where We Are, supra note 23; Superintendent’s 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>

⁵⁰ 2002 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; Governor’s Partnership for Achieving Successful Schools, PASS Initiative Goals <http://www.passvirginia.org/ GoalsandIssues/goals.cfm>; Governor’s 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.

E.M. Miller, Jr., Director
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

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