A better No Child Left Behind or another empty promise to our disadvantaged students?

President Obama signs new bill on December 10, 2015 that replaces the Bush administration’s No Child Left Behind Act.

Photo by NPR.

A “Christmas miracle” in the form of new federal legislation replacing the No Child Left Behind Act (“NCLB”) was signed into law by Obama last week.  The new bipartisan bill, renamed the Every Student Succeeds Act, revises the controversial NCLB and removes the accountability measures for standardized test scores previously set by the federal government.  The new bill was passed in the House on December 2, 2015, by a 359 to 64 vote, with all Republicans giving the nay votes expressing concerns that the bill does not go far enough in reducing federal oversight.  The legislation was then passed by the Senate on Wednesday, December 9, 2015.

In July 2015, the Senate and House of Representatives previously passed their own versions of the Every Student Succeeds Act (“ESSA”) revising the NCLB.  Senator Patty Murray said the new bill is an effort to put less emphasis on standardized testing and more emphasis on college preparation.  The signed legislation is the result of a combined single proposal that was seeking the president’s approval, which was a success as ESSA officially became law on December 10, 2015.

NCLB specifically focused on ensuring that schools boost the performance of certain minority groups with lower achievement scores

ESSA was specifically created to overcome the shortcomings of NCLB which was signed into law in 2002.  NCLB was signed into law by President Bush as a reauthorization of the 1965 Elementary and Secondary Education Act (“ESEA”).  The 1965 ESEA was signed by President Lyndon B. Johnson as an effort to reach “full educational opportunity” in the president’s Great Society program.  ESEA offered more than $1 billion a year in aid to districts to help cover education costs for disadvantaged students under Title I.  NCLB was created because of concerns that the American educational system was no longer internationally competitive after ranking low in mathematics and science.  NCLB significantly increased the federal presence in the American school system, making sure that schools were keeping track of the academic progress of all students.

NCLB specifically focused on ensuring that schools boost the performance of certain minority groups with lower achievement scores—English-language learners, special education learners, children from low-income families, and minority children.  Under NCLB, states were mandated to test students in reading and math for third grade through eighth grade, and then once in high school.  States were required to report results to the federal government, showing results for the entire student population as well as scores for the specific targeted minority groups.  Schools were further required to keep track of their goals (bringing all students to the “proficient level”) through the mechanism “adequate yearly progress” (“AYP”).  If a school did not meet the state’s annual achievement target for two years or more, either for all students or for a particular minority group, it did not make AYP.  Failing to make AYP subjected a school to increasingly serious sanctions including to (1) allow students to transfer to a better-performing public school in the same district after a two-year streak of missing AYP; (2) offer students free tutoring after a three-year streak of missing AYP; or (3) face state intervention which could result in schools being closed, turned into charter schools, taken over by the state, or some state implemented turnaround strategy if schools continued to miss AYP past three years.

States were required to bring all students to the “proficient level” on state tests by the 2013-14 academic school year with states determining the “proficient level” and what tests to use.  No state met the 100 percent goal by the 2015 deadline.  In 2006, 26 percent of schools were failing to make AYP, and that number increased to 38 percent in 2011.  Several states even had failure rates of more than 50 percent.  This failure to meet the proficiency level is one of many criticisms of NCLB.  There is no clear data on whether the two main remedies—transfer and free tutoring—did much to improve student achievement.  Furthermore, NCLB was widely criticized for its heavy federal footprint, overreliance on standardized testing, and overemphasis on reading and math forcing other subjects like social studies, foreign languages, and arts to fall through the cracks.  Education advocates also claimed the law was underfunded; by 2007 Title I was supposed to rise to $25 billion and just in 2015 Title I only received $14.5 billion.

ESSA was introduced to “reduce the federal footprint, restore local control, and empower parents and education leaders to hold schools accountable for effectively teaching students.” 

Due to the shortcomings of NCLB and the striking reality that high school graduation rates are at an all-time high in the United States, Congress and the Obama administration sought to redress our education problem with ESSA.  Specifically, ESSA was introduced to “reduce the federal footprint, restore local control, and empower parents and education leaders to hold schools accountable for effectively teaching students.”  ESSA preserves the federally mandated standardized testing, but it eliminates the punitive consequences for states and school districts with poor performances.  The Act instead returns power to the states and local districts to determine how to improve its low performing schools.  Senator Lamar Alexander stated “What we’ve learned from this is that a national school board doesn’t work in the United States of America — we’re just too big and complex a country.”

ESSA further bars the government from imposing academic requirements like the Common Core—state standards for what each grade level is expected to learn.  Instead, ESSA will focus its efforts on preparations and standards for college and career readiness.  It removes the requirement that all children become proficient in reading and math by a set date, and allows states to set their own performance goals, rate their own schools, and determine the right fixes for those schools that fail to meet the state’s objectives.  Obama stated that the bill “makes long-overdue fixes to the last education law, replacing the one-size-fits-all approach to reform with a commitment to provide every student with a well-rounded education.”

ESSA ensures that public education is a “joint responsibility” and takes away the harsh requirement that test scores are a part of teacher evaluations says Randi Weingarten, the president of the American Federal of Teachers.   The law still imposes some federal oversight for the lowest performing 5 percent of schools and high schools with one third of students failing to graduate. Although schools are required to have steps in place to close achievement gaps between students in minority groups, the federal government will leave it up to the states to makes sure these steps are being taken.

[M]any democrats and civil rights groups say the new law effectively allows states to ignore disadvantaged students . . .

However, civil rights groups are concerned with the lack of federal oversight in the new ESSA.  Specifically, opponents point out that absent federal presence, states and localities may not “do the right thing” by our nation’s poor, minority, and disabled students.  Essentially, many democrats and civil rights groups say the new law effectively allows states to ignore disadvantaged students who are the most difficult or costly students to educate.  Opponents argue that the “testing mandates in the ESSA continue to retreat from the anti-poverty focus of the 1965 [ESEA].”  Thus, for states like North Carolina where all schools that received an “F” rating had school populations of more than 50 percent low-income children or areas like Chicago where 49 elementary schools with 90 percent of their populations being black students and 60 percent being special needs students were forced to close, will still be caught in the crossfire. These vulnerable minority groups will still be “penalized” and the new ESSA will do little to help with this disproportionate punishment vulnerable students and schools.

Furthermore, it falls short of some of President Obama’s goals such as a major expansion of early childhood education, although it does provide preschool development grants for low-income children in the amount of $250 million.  However, opponents argue that studies showing the importance of learning development for ages 0 to 3 years, this amount is not enough.  Access to quality preschool is especially critical for poor children but opponents say the ESSA is unlikely to reach the goal that all children have this needed access to quality educational opportunities.

All sides agree that Every Student Succeeds Act is a much needed revision to the disappointing provisions of No Child Left Behind Act, however, only time will tell whether the still present testing mandate will continue to allow our minority students to be left behind.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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