AASA Supports NEA NCLB Lawsuit

The NEA announced today that six states (CT, DE, IL, ME, OK, WI, and DC), the governor of Pennsylvania, state and local officials in California, and the American Association of School Administrators (AASA) filed a series of amicus briefs in support of the NEA’s appeal of the dismissal of their NCLB lawsuit, Pontiac v. Spellings.

Perhaps the most interesting development is AASA’s support for the lawsuit. It adds a management component to the labor plaintiff. If nothing else, NCLB has brought the superintendents and teacher’s union together on one issue.

Specifically, AASA takes exception to the Secretary’s interpretation of Section 9527, criticizes the costs involved in complying with NCLB, blasts Congress’ failure not to appropriate more money for Title I, and is dismayed at what it considers the dumbing down of state tests because of cost considerations.

Highlights of AASA’s amicus brief:

Amici agree with appellants that the Section imposes a broad prohibition against requiring states or school districts to spend their own funds for NCLB compliance, including compliance with requirements that are imposed by the NCLB itself. Amici do not write, however, to reiterate the basic principles of statutory interpretation that compel that conclusion. Rather Amici write to respond to an argument made by the defendant Secretary of Education (“Secretary”) in the district court (and noted with apparent approval in the decision of that court), and that Amici anticipate the Secretary may make in this Court as well…

the Secretary argued that Section 9527(a) could not possibly mean what appellants say it means, because if states and school districts were obligated to comply with the mandates of the NCLB only to the extent that they received sufficient federal funds to do so, this could prevent full implementation of the NCLB, and in turn could undermine the statutory purpose of “improving the academic achievement of all students . . ..” Amici disagree. As appellants explained in their complaint, in the NCLB Congress imposed extensive and costly new mandates on states and school districts in exchange for significant new federal funding to carry out those mandates….

Specifically, to provide states and school districts with the funds necessary to comply with Title I of the NCLB (which is the NCLB Title that imposes the most

significant mandates on states and school districts), Congress authorized the appropriation of $116.25 billion dollars over the course of the first six years of the

program, from fiscal year (“FY”) 2002 through FY 2007, with the authorized amounts steadily increasing from $13.5 billion in FY 2002 to $25 billion in FY

2007, to correspond to the increasing number and cost of the NCLB mandates during that period.

In the six years since the NCLB was enacted, however, Congress has appropriated (for FY 2002-2006) and the President has proposed (for FY 2007), an aggregate total of only $72.547 billion for those purposes, leaving states and school districts with a funding gap of at least $43.703 billion to fill. Moreover, the amount of the funding gap has steadily grown from fiscal year to fiscal year, as the NCLB mandates have become increasingly more extensive and expensive. Indeed, in the current school year, more than two-thirds of school districts in the country are receiving less in NCLB Title I funds than they previously did. Over the next few years, the situation is expected to deteriorate further: twenty-eight states and nearly two-thirds of school districts nationwide are receiving less Title I monies for FY 06 than they received during FY 05, and forty-one states are slated to receive less Title I monies under the President’s proposed budget for FY 07 than they did in prior years. This deterioration reflects the reality that instead of increasing appropriations for NCLB compliance each year as promised when the NCLB was enacted, Congress actually cut NCLB funding in FY 06 and is currently considering flatlining NCLB funding for FY 07 at the same level as FY 06….

Many states and school districts modified or abandoned their pre-existing testing regimes – which often were fuller and more comprehensive than the testing program mandated by the NCLB – because they lacked the resources necessary to maintain two separate testing regimes and/or could not sustain the pre-existing testing regimes on the scale mandated by the NCLB given the minimal federal funding provided….

Connecticut, for example, chose not to expand and strengthen its testing of students in grades 4, 6, 8 and 10 because of the need to devote its funds to developing and administering the standardized tests in grades 3, 5 and 7 that the NCLB mandates, but for which the federal government has not fully paid. Illinois reportedly abandoned plans to develop assessments for students on all of the Illinois learning standards, finding it necessary to proceed solely with the NCLB mandated tests rather than with the richer assessments in writing, social studies, arts, health and physical development that had been under consideration. And, Maryland stopped testing students in writing, science, and social studies, limiting its assessments solely to the reading and math tests currently required by the NCLB.

The cutbacks in testing subjects not covered by the NCLB inevitably have resulted in cutbacks in instruction in those subjects – illustrating the truth of the adage that what you get in education is what you assess. Throughout the country, elimination of tests in non-NCLB subjects has resulted in the elimination or reduction of classes in such subjects, including social studies, music, physical education, art and others. A recent nationwide survey of school districts found that to comply with the NCLB mandates, 71% of districts had reduced hours of instruction in elementary school on non-NCLB subjects, “systematically trimming courses like social studies, science and art” from the curriculum, and significant percentages of school districts reported similar reductions in their middle and high schools…

In sum, the Secretary’s insistence that states and school districts fully comply with the NCLB mandates no matter how far short federal funding falls from covering the costs of doing so, has forced states and school districts to divert funds away from other educational programs and priorities that, in their professional judgment, are essential to a sound educational system…

Congress has sought to fund the NCLB school improvement mandates by providing that states are to set aside for this purpose 4% of their Title I, Part A funds. However, the statute stipulates that the 4% set-aside must give way to the extent that it would result in a reduction of the total Title I, Part A funding that any school district receives as compared to the previous year. In reality, therefore, the 4% set-aside can only be applied to the portion of the state’s Title I, Part A funding that is allocated to school districts whose funding Is increasing. For most school districts, however, NCLB funding is declining, and many states therefore are not permitted to set aside 4% of their Title I, Part A funds. In the current school year, ten states were unable to set aside the full 4% – with two states (Oregon and New Mexico) unable to set aside more than .1% of those funds for school improvement activities. As a consequence, New Mexico now has only about $130,000 and Oregon has only about $169,000 to devote to the school improvement activities that must be undertaken in order to ensure that the schools in their states that have failed to make AYP for two years in a row make the necessary improvement in the future. Given that there are 95 such schools in New Mexico (leaving the state with just $1,368 per school for improvement activities) and 44 such schools in Oregon (leaving the state with just $3,834 per school for improvement activities), it could hardly be more apparent that the available federal funds do not even provide a foothold for beginning the type of comprehensive school reform strategies necessary to raise student test performance to the NCLB mandated levels…

The virtual absence of federal funding for NCLB-mandated school improvement activities is so severe that states and school districts cannot possibly be expected to come up with sufficient funds on their own to carry out those activities. Thus, at the existing levels of federal funding, the NCLB school improvement mandates and, with them, the NCLB as a whole, serve to undermine rather than improve the quality of public education…

there is growing evidence that the NCLB testing regime is unsound due to the inadequate funds the federal government has provided for the development and implementation of the required assessments – an inadequacy that again, is so pronounced that states and school districts cannot realistically be expected to fill the gap.28 According to one recent report, “lack of time, money, and skilled staff have led a substantial number of states to introduce tests that many testing experts say are not fully aligned with state standards – tests that don’t test what states expect their students to know.”...

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