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No Child Left Behind heads for the wrecking yard, as House and Senate conference signals imminent ch
Planned new bill will still require states to test every year, but will no longer dictate what to do with the data . - photo by Eric Schulzke
The most sweeping education reform of the last generation may be headed for the dustbin.

On Wednesday, congressional leaders set in motion the end of No Child Left Behind, the controversial and divisive law that made schools and teachers accountable for performance, gave what some saw as undue influence over local decisions to the federal government, and attempted to bring failing inner city schools up to par.

Its replacement, which is expected to have support of bipartisan majorities in both houses, would significantly transfer power from the federal government to the states, maintaining the requirement of annual testing but allowing states to decide how to remedy failure.

NCLB was "based on good intentions, but also the flawed premise that Washington should decide what kids need to excel in school," said House Education and Workforce Committee Chairman John Kline (R-Minnesota) at the meeting, which was streamed online.

Over the past several months, an unusual political alignment has emerged, with teacher unions and Republicans holding hands on returning power to the school and the classroom.

The Senate and the House both passed different versions of an NCLB fix in July, with the Senate version viewed as more bipartisan and thus more likely to avoid a presidential veto. Since then, leaders of the two houses have been working to reach a consensus.

"This is most signifciant step toward local control in 25 years," said Sen. Lamar Alexander (R-Tennessee) at the conference between House and Senate leaders on Wednesday. "Some would like to go further. I am one of those. But I decided, like Ronald Reagan, that I'll take 80 percent of what I want and fight for the other 20 percent another day."

Failure nation

Opposition to NCLB centered on its rigid expectations for progress measured by standardized test performance.

When No Child Left Behind was signed into law in 2001 by President George W. Bush, with Sen. Edward Kennedy (D-Massachusetts) standing by his side, it aimed to hold schools accountable using standardized tests and funding pressure, shutting down or overhauling persistent failures.

But the law soon was viewed as unrealistic. By 2014, nearly every school in the country was deemed to be failing, and waivers issued by the Department of Education became the norm. But these waivers came with strings, imposed by the department completely outside of the statute.

Sen. Patty Murray (D-Washington), Alexander's Democratic counterpart on the Senate committee, noted that in her state almost every school is now judged to be a "failing" school based on those measures, with severe financial implications.

Washington refused to pass legislation tying teacher evaluations to standardized test scores, something Education Secretary Arne Duncan had required to grant a waiver from unrealistic NCLB targets.

Without that waiver, the state's schools lost money targeted to low-income students, leaving the schools with less money to face challenges. In 2014-15, for example, Washington state had to divert $38 million in federal Title I funds for disputed tutoring programs including some private, for-profit companies as a punishment for failing to get the waiver.

"That's the wrong message to send to parents and communities, who deserve more certainty about the quality of education kids receive in their public schools," Murray said.

Murray said she is pleased that a consensus has been reached to fix the "badly broken law."

The consensus

While Democrats like Murray chaffed under testing requirements that punished teachers, Republicans were likewise anxious to shift power back to the states, after years of unprecedented federal control under NCLB.

"The Department of Education has become a national school board," Alexander said in his opening comments, referrring to the sweeping power exercised by Education Secretary Duncan.

The new legislation, which will blend elements of the House and Senate versions passed in July, will result in annual testing for grades 3-8, using one of a handful of testing systems such as PARCC or the new Smarter Balance test. The data will be used to grade schools and inform parents, but will not be tied to any consequences dictated by the federal government.

There is a provision that the lowest performing schools get some kind of intervention. But what that intervention would be is left unsaid and will be left entirely up to the states in the compromise. No one really knows what shape these interventions may take, and some fear it is merely a rhetorical gesture.

"I feel good about the compromise," said Michael Petrilli, president of the Fordham Institute, a conservative education reform think tank. "It's a very fair compromise and it looks like both sides negotiated very aggressively. I wondered if they could thread the needle, but it looks like they did."

Notably, the new legislation will go to great lengths to tie the hands of the secretary of the Department of Education by putting strict language where NCLB had left discretion to the department. When the unrealistic law became unworkable, that broad discretion gave immense power to the education secretary to name his price in return for waivers.

The compromise bill will go to "unprecedented lengths to tie the hands of the Cabinet secretary," said Petrilli. Many policy veterans say they have never seen anything quite like it, Petrilli said.


Not everyone is thrilled with the compromise, but most advocates on both sides seem willing to live with it.

Bob Schaeffer, public education director for FairTest, an advocacy group that opposes the excessive use of standardized tests, would like to have seen a shift to "grade span testing" on math and English, rather than annual testing in grades 3-8.

Grade span testing means testing once in grade school, once in middle school, and once in high school. As things stand, and under the proposed rewrite, Schaeffer said, by the time a student graduates from high school they will still have taken 17 standardized tests mandated by the federal government.

The tests include math and English six times each from grades 3 through 8, plus once more for both subjects in high school. The other three tests are science exams given once in elementary, middle and high school. All those tests will remain in place in the proposed new legislation.

But to Schaeffer, tying the secretary's hands and shifting power to decide what to do with the tests to the states is enough of a win to be worth fighting for.

Other concerns emanate from civil rights advocates on Capitol Hill. Among the leading voices is Frederica Wilson (D-Florida), who sees standardized testing and federal sanctions for failure as a bulwark against states ignoring the plight of failing inner city schools, Schaeffer said.

On the far right, many congressmen still hope to further dial back federal control. Some are still fighting for a "portability" provision that would attach Title I funds under ESEA to the low-income students themselves, rather than the schools, allowing the parents to choose public or private schools freely.