Yesterday, by a margin of 81-17, the U.S. Senate passed a bill to reauthorize the federal education law, the Elementary and Secondary Education Act (ESEA), whose most recent 2002 version we call No Child Left Behind (NCLB).  The House of Representatives passed a highly partisan and very conservative Republican reauthorization bill last week.  This means the bills will now move to a conference committee to see if the two versions can be reconciled.  It is intended that the ESEA is to be reauthorized every five years, and Congress tried in 2007 and at least one other time since then but failed to agree on a new law.

Today the federal education law is especially important because No Child Left Behind inserted the federal government into the operation of all public schools across the country.  NCLB is responsible for the vast wave of high stakes standardized testing; it has blamed teachers and imposed sanctions on them; it insists that schools be ranked and that the schools unable quickly to raise test scores be punished.  While the original, 1965 ESEA operated on a theory of injecting extra federal funding into the schools nationwide that served a high number or high percentage of children in poverty, the 2002 NCLB version sought to punish schools that were said not to be expecting enough of the students whose scores were low.  Raising test scores, not investment for equity, became its purpose.

In January of 2002, when No Child Left Behind was signed, I was staffing public education advocacy at the United Church of Christ’s Justice and Witness Ministries.  To track the implementation of the new federal law, I set up a loose-leaf binder for reports and clippings that would clarify the law’s impact.  I placed the binder at the end of a long counter in my office.  The law was based on sanctions for school districts that could not raise scores, and I planned to look at how these punishments were going to work.  I soon discovered there was also a lot of collateral damage that members of Congress seemed never to have considered as they debated the law in the months right after the airplanes struck the World Trade Center. Over the years my reports and clippings filled more and more binders.  They cover topics like Adequate Yearly Progress, High Stakes Testing, Standards, NCLB: Teachers, NCLB: Legal and Legislative Challenges, NCLB: Lack of Funding and Capacity, Sanctions: Supplemental Education Services, Sanctions: Transfers Out, Sanctions: Restructure, Sanctions: Turnaround, Sanctions: Closure, Narrowing Curriculum,  NCLB and English Language Learners, NCLB and Students with Special Needs, NCLB: Test Cheating, and NCLB: Waivers.  When I retired, I brought my NCLB reports and clippings files home.  Today they take up seven and a half feet of shelf space.  I had hoped to move them to the attic if Congress succeeded with a reauthorization this year, but sadly, even if Congress reconciles House and Senate versions, the new law will not go far enough to undo the damage wrought by NCLB.  It looks as though I’ll have to keep these files active by adding the new reports and clippings that will continue to show that a sanctions-based education philosophy is inadequate for serving our nation’s poorest children and their schools.

It would appear that, if a reauthorization can be agreed on in conference committee, the Republican dominated Congress will soften what has been widely perceived as intrusive federal implementation of the law.  Both House and Senate versions require that states identify schools whose scores are persistently low and then require states themselves to devise plans to do something about it.  Here is a summary of the Senate bill’s essentials from Lauren Camera at Education Week: “The Senate reauthorization would eliminate the current accountability system, known as adequate yearly progress and allow states to create their own systems instead.  The proposal would maintain the annual federal testing schedule…. Importantly, the bill would maintain the requirement that states report disaggregated data for subgroups of students, which is the only provision of the current NCLB law that lawmakers on both sides of the aisle agree is beneficial in highlighting achievement gaps.  As for low-performing schools, the bill would require that states identify them, but wouldn’t be specific about how many schools states need to target or what those interventions should look like… The overhaul would require states to establish ‘challenging academic standards for all students,’  but prohibit the federal government from playing a role in the process of choosing standards…. In addition, the Senate bill would eliminate the NCLB waiver requirement that states develop and implement teacher-evaluation systems, though it specifies that they can if they want to.  Finally, it would list early-childhood education as an allowable use of funding for a broad swath of programs in the ESEA.”

The Senate defeated an amendment (promoted by the Education Trust and some national civil rights groups who strongly support strong sanctions as the only way to hold schools accountable) for Congress to be more prescriptive about interventions required of states. The Senate also defeated an amendment (endorsed by the National Education Association) that would have required states and school districts to report at least some data about resource inequity along with disaggregated test score data.  The intent of the defeated measure was to expose large and persistent gaps in funding and other resources across our nation’s public schools even as Congress demands that test score achievement gaps be closed.  The Senate passed an amendment that will enable the federal government to begin supporting full-service, wraparound Community Schools. These are the institutions with health and social service programs clustered right in the school building.

In the bill that passed yesterday, the Senate rejected a proposal called Title I portability.  The bill that passed the Senate continues to target Title I funds primarily to the schools that serve concentrations of very poor children. The Senate defeated the proposal that would have allowed individual poor children to carry a little package of Title I funding along if they changed schools, but the margin in the Senate to defeat Title I portability was only 6 votes—45-51. The House version of the law that passed last week does contain Title I portability.  If Senate negotiators hold firm, the two chambers’ difference on Title I portability may be an impediment to reconciling the two versions. Or there remains the danger that the Senate’s opposition to Title I portability could get traded away in the process of reconciling House and Senate bills.  Here is an explanation of Title I portability.  Many believe that Title I portability for public schools, if it were to be included in ESEA, might also be the top of a slippery slope toward Title I vouchers for private schools.

The Senate did vote to recalculate the Title I formula in a way that would shift distribution, but it delayed implementation of this provision significantly to prevent the loss of federal dollars from many of the big states with seriously concentrated poverty—Illinois, New York, Maryland, Virginia, Pennsylvania, New Jersey, Connecticut, Louisiana, Massachusetts, Michigan, West Virginia, Wisconsin, Ohio, and Nebraska. After Senators in states that would have lost funding threatened to vote against a bill that would recalculate their Title I funding, Senator Richard Burr agreed to soften his amendment.  Lyndsey Layton of the Washington Post explains: “Burr rewrote the amendment so that the formula changes would not take effect until Congress funds Title I at $17 billion annually.  It is unclear when that would happen; the program is currently funded at $14.5 billion, an amount that has been steady since 2012.  In addition, the change in formula would affect only dollars spent by Congress in excess of the $17 billion benchmark.”

Back in the fall of 2001, Ted Kennedy agreed to co-sponsor NCLB because there were promises that its sanctions would be accompanied by a very significant investment to improve and support struggling schools.  That infusion of financial support never materialized.  And today over half the states are spending less on public schools than they did before the Great Recession in 2008. When federal, state, and local dollars are combined, our society spends far more on the public schools serving children from wealthy families than those that educate children living in poverty. The new Senate reauthorization bill neither directs more federal funds to alter these realities nor incentivizes states to equalize educational opportunity.

After 13 years of test-based accountability, NCLB’s goals have not been realized.  Achievement gaps have not closed.  Overall school achievement, as measured by the National Assessment for Education Progress, has grown more slowly since the law was passed.  Our public schools are becoming increasingly segregated by economics. Many poor children attend schools with large classes, too few guidance counselors, and an absence of advanced courses like Calculus and enrichments like instrumental music.

On Monday of this week in a column directed to the Senators considering the reauthorization of ESEA, Rev. Dr. William Barber, the prophetic president of the North Carolina NAACP and founder of the Moral Mondays movement challenged lawmakers’ persistent belief in high stakes testing as a prescription for school improvement: “Kids are born as hungry to learn as they are to eat.  All of them need learning environments that help them thrive and live purposeful, prosperous lives.  Educational opportunities and qualified, caring teachers make this dream possible.  But as we under-resource our public schools, we are not just deferring dreams, we are shriveling and stomping on them… The last time Congress reauthorized ESEA, they and President George W. Bush established high-stakes testing, labeling, and policies that punish schools if kids flunk the tests.  Tests don’t teach.  Nurturing creative adults who know how to draw out individual children is what education is about.  We don’t send our kids to school to become skilled test takers.  We pay our taxes and send our kids to public schools because we need future corporate CEOs, cardiologists and aerodynamic engineers, university presidents and school principals, urban planners and architects.  Our sons and daughters can’t reach these heights when accountability in our education system hinges on standardized test scores, not cultivating intellectual opportunity—the real measure of education…  Congress has a chance to fix the high stakes testing regime that has failed.  Congress has the chance to deliver on its promise of educational opportunities for all students, especially the nation’s most vulnerable ones, which is the purpose of ESEA… Stop drying up our kids’ dreams, like raisins in the sun.”

We will have to wait to see whether differences between Senate and House versions can be reconciled into a reauthorization that can be passed this year.  But even if an agreement is reached to coordinate both bills, Congress will not have chosen significantly to address resource equity—which is what our children need the federal education law to ensure.