Complaints about the No Child Left Behind Act (NCLB) began even before the bill was signed into law in 2002, and they haven't stopped since. Educators and state officials protest that the measure costs too much to implement, lacks congressional funding support, is in conflict with state testing programs, and is inflexible in its demands on struggling schools.
Most recently, after three years of legislative complaints and negotiations with the U.S. Department of Education (DOE), Connecticut filed a lawsuit against the federal government, arguing that the NCLB is an unfunded mandate. As state attorney general Richard Blumenthal put it, "This mindless rigidity harms our taxpayers, but most of all our children."
The Connecticut lawsuit may have been the loudest shot fired in the NCLB conflict, but it was not the first. According to the advocacy group Communities for Quality Education, which tracks the issue, all but three states have pushed back against the law in one form or another. Add up the various types of protest -- from opt-outs and waiver requests to state and federal lawsuits to anti- NCLB legislation and cost studies -- and the sum total is a nationwide revolt.
"You get emotional reactions, and then you get policy reactions," says Jack Jennings, whose nonprofit, nonpartisan Civil Society Institute recently released a report studying the reactions to the NCLB. "The emotional reactions are from teachers who say they are being made into whipping posts and being told that they have to solve all the ills of society, and that they aren't getting much help to do it. With state legislators, they are concerned that the federal government is intruding into what is traditionally a state role."
The most common state protest against the NCLB has been the request for a waiver -- essentially, an official plea for some rule bending. Forty states have requested leniency on almost every aspect of the NCLB mandates, including levels of teacher qualifications, timing of tests, determination of pass levels for those tests, and tutoring requirements.
In the wake of Hurricane Katrina, advocacy groups such as the National Education Association (NEA) insist that schools impacted by the hurricane -- either by closure or due to enrollment of displaced children -- should not have to meet NCLB requirements for improved test scores this year. It is a step that, according to an interview in the New York Times, U.S. Secretary of Education Margaret Spellings was "reluctant" to take, although a DOE spokeswoman has said Spellings is willing to meet with school district superintendents on a case-by-case basis.
Until last summer, most waiver requests were denied. Then the DOE, conceding one battle in the growing revolt, finally granted a handful of public concessions: In June, four waivers were granted to Virginia (out of fourteen the state had requested), including one that relaxed requirements for when students must be tested and tutored. On August 31, a waiver was granted for the Chicago Public Schools, allowing the school district to tutor students despite its failure to meet NCLB testing requirements.
"These are indications that things have changed and political opposition has been too strong for the administration," Jennings contends.
Maybe, but the granting of waivers hasn't ended the debate. In fact, more anger has been unleashed at the state level, largely because the remedies haven't been universally applied. "States that are getting 'good deals' are being silent because they don't want to upset the Department of Education and jeopardize the deal they got by going public with it," says Scott Young, senior policy adviser for Communities for Quality Education. "States that get no deal or bad deals, once they hear about this, are hitting the ceiling, and that has created this very contentious relationship with the Department of Education."
Some states and schools districts have simply thrown in the towel, opting out of the NCLB and the federal education funding tied to it. Three affluent districts in Connecticut were the first to use this tactic in 2003, turning down more than $125,000 in federal Title I funding (aid for children from low-income families) that would oblige the districts to implement the law. According to their estimate, it would cost more to administer the requirements than the Title I money would cover. Two Chicago-area districts followed suit, leaving $374,000 on the table.
Even Texas, which initially served as a model for NCLB implementation, was willing to risk money rather than concede to the act's demands. Last year, the state deliberately missed a deadline to notify parents that certain schools were not meeting NCLB standards, resulting in a $444,282 fine for the state.
But the biggest opt-out salvo came from Utah, which, in May 2005, became the first state to openly and completely abandon NCLB. After months of legislative debate, Utah Governor Jon Huntsman signed into law a bill that rejected the act's educational standards in favor of the state's own standards, resulting in a potential loss of $76 million in federal funding. A few days later, Colorado passed into law a similar, though less contentious, bill that allows schools there to opt out of the NCLB without having to pay state penalties.
At least thirteen other states have since considered similar opt-out legislation, although most have been too cautious to walk away from millions in federal funding. Still, twenty-one states have so far introduced some form of legislation opposing the NCLB, ranging from bills that would prohibit state money from being used to implement the act's requirements (Maine, New Hampshire, Vermont, and Wisconsin) to resolutions simply critical of it (Colorado, Connecticut, Hawaii, Maine, New Mexico, Utah, and Virginia) to a Maine law that will allow the state attorney general to file suit against the federal government if the act is proven to be inadequately funded.
Most state legislation has, thus far, been fairly toothless. As a result, some school districts have taken matters into their own hands by filing lawsuits against both the federal government and their particular states as well. In California, eleven districts sued the state government earlier this year over the NCLB requirement that schools test second-language learners in English. And in Illinois, three districts filed a lawsuit against the state arguing that NCLB strictures conflict with the Individuals with Disabilities Education Act (IDEA).
Until Connecticut filed its lawsuit, the biggest legal challenge to the NCLB came from the NEA, the largest teachers' union in the country, which, along with eleven school districts in ten states, filed a lawsuit against the federal government in April. The NEA lawsuit argues that NCLB is an unfunded mandate and that, in order to fulfill all the requirements of the act, Congress will need to come up with an additional $27 billion in education funding.
"We have tried the regulatory route, we tried the political route, we tried the legislative route, and we were not able to make the kind of success that we needed to have this thing fixed and funded," says NEA president Reg Weaver. "We want to see if there can be more funding and more flexibility."
Connecticut echoed this complaint when it filed its own lawsuit in August: According to its estimates, the state will have to spend $41.6 million of its own money on NCLB tests. As the lawsuit put it, "Connecticut cannot comply with both its state statute and the federal Department of Education's rigid, arbitrary, and capricious interpretation of the NCLB mandates unless the mandates of the NCLB are either fully funded or the mandates are waived."
In a recent speech, the DOE's Spelling called Connecticut's lawsuit a "red herring," and the department released a statement saying, "It's unfortunate that the state has chosen to address their achievement gap with a lawsuit that takes attention from their neediest students."
Indeed, pro-NCLB advocates argue that the lawsuits and protests are baseless. Says Ross Wiener, policy director for the Education Trust, "Part of this whole controversy is about a defensiveness. One of the saddest things is that the enforcement and implementation [of NCLB] by the administration has been so heavy handed and clumsy sometimes that it has created sympathy for these states when they deserve none. They have cheated these kids and their families for so long, and that's what's being exposed. Somehow, they are getting sympathy, because they are being asked to do so much, and they didn't get extra money."
What Lies Ahead?
Watchdogs point at the many state cost studies about to be released, which will lay out in more exact detail the price of NCLB implementation. Fourteen states are participating in a NCLB cost consortium run by the Council of Chief State School Officers. Of those, two cost studies have come in: one from Connecticut (which came up with the implementation figure of $41.6 million) and one from New Mexico, which reported that it would need $81.1 million to $125.7 million for both state and local implementation. If the rest of the numbers are equally unwieldy, anti-NCLB activists predict that more rebellion will follow.
Janelle Brownjb@janellebrown.com is a freelance journalist living in Los Angeles. Her work has appeared in the New York Times, the Los Angeles Times, and Self, and on Salon.com.