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October 7, 2001

State Legislators' Conference Withdraws Support for HR1/S1

Calling the legislation "seriously and perhaps irreparable flawed," the National Conference of State Legislators (NCSL) urged Congress not to pass the "No Child Left Behind" federal ESEA reauthorization. Dated September 26, 2001, the letter to U.S. House and Senate leadership states nine items of concern. Included are the form of "accountability" imposed on states, the excessive costs to states, the violation of state authority over education, and more.

MREdCoPAC takes exception to the NCSL favorable opinion of the federal Goals Panel. We would also add a major concern about the continuation of funding for the Center for Civics Education (CCE), a specific non-governmental organization (NGO) that is directed to establish national standards on Civics and Education with no oversight from any elected or appointed body. The CCE has been undermining the principles of our free system of self-governance under the funding authority of the federal ESEA.

Still, it is hard to overstate the significance of this letter.  (See it below.) It represents a substantial crack in support for the new federal education bill.

RE:

Annual testing
Accountability
Testing costs
Adequate yearly progress
Data collection and reporting
Teacher quality
Governance
The National Education Goals Panel
IDEA

TO: Congressional Conferees regarding the re-authorization of the Elementary and Secondary Education Act. (ESEA)

Copies to House and Senate Leaders.

The Honorable John A. Boehner
Chairman
House Education and the Workforce Committee
1011 Longworth House Office Building
Washington, D.C. 20515

The Honorable Edward M. Kennedy
Chairman Senate Health, Education, Labor, and Pensions Committee
315 Russell
Senate Office Building
Washington, D.C. 20510

The Honorable George Miller
Ranking Minority Member
House Education and the Workforce Committee
2205 Rayburn House Office Building
Washington, D.C. 20515

The Honorable Judd Gregg
Ranking Minority Member
Senate Health, Education, Labor, and Pensions Committee
393 Russell
Senate Office Building
Washington, D.C.20510

Reference: Conference deliberations on HR 1 and S 1

Dear Chairman Boehner, Representative Miller, Chairman Kennedy, and Senator Gregg:

We write to express the concerns of America's state legislatures regarding both the House and Senate versions of the re-authorization of the Elementary and Secondary Education Act (ESEA). After careful review, we have reluctantly come to the conclusion that critical parts of both S.1 and H.R.1 are seriously and perhaps irreparably flawed.

Our concerns are as follows:

1. Annual testing: The testing requirement at the heart of both bills is an egregious example of a top-down, one-size-fits-all federal reform. There is no compelling or convincing argument that an effective accountability system must include annual testing in multiple subjects.
   
   Evidence indicates otherwise. The most recent National Assessment of Educational Progress (NAEP) results rank the top ten states in reading and math in grades 4 and 8. In those four top ten listings, only one state appears that tests its students every year in grades 3-8.
   
   In other words, there is no correlation between annual testing and student performance on NAEP. A federal mandate for annual testing is a senseless preemption of successful state accountability systems that do not include annual testing.
   
2. Accountability: The requirement to use a standardized statewide testing instrument ignores successful state accountability systems that use a combination of state and local testing. This combination model, suggested by the Improving America's Schools Act, is the standard used by many states complying with IASA since it passed in 1994.
   
   Currently 17 states require school districts to have local assessments as a part of their state assessment strategy. This allows local school districts to account for and assess local curriculum options in an overall state accountability system. Sacrificing a flexible but effective state system at the altar of this federal mandate is counterproductive.
   
3. Testing costs: Funding to assist states in the development and administration of the annual state testing requirements is inadequate to successfully implement this mandate. Although some estimates of the cost of testing are excessive, we also recognize that the appropriation request is inadequate. The Senate estimated that it would cost $880 million per year for three years for states to comply.
   
   During committee debate, members indicated that states would be expected to pick up half of those costs. The committee authorization was reduced to $370 million per year, leaving a three year unfunded mandate in excess of $1 billion dollars. These initial and ongoing costs will be shifted to the states with the justification that they are merely a "condition of grant" rather than their accurate depiction as another costly federal mandate.
   
4. Adequate yearly progress (AYP): Both bills indicate a level of adequate yearly progress that would, by Congressional Research Service estimates, classify over 90% of our nation's schools as "failing". We acknowledge that many of our schools need to improve, but we know in our hearts that more than 10% are currently doing a good job of educating our students. Neither version offers an acceptable alternative threshold for AYP.
   
5. Data collection and reporting: This requirement would compel states to collect longitudinal data on students beginning in the third grade and to report on the performance of all students and sub-groups of students annually.
   
   The provision ignores the price of hardware, software and maintenance by again shifting the costs to the states. As we reported in previous correspondence, the costs of complying are substantial. For example, in the late 1980s, Texas appropriated $12 million for hardware costs for its Public Education Information Management System (PEIMS) and has subsequently appropriated about $3 million/year for maintenance of its education data system.
   
   The majority of states (38) do not have a sophisticated statewide data system with the capacity to process and store this enormous amount of information. Our members are also concerned about the use and potential misuse of sensitive data collected about our children.
   
6. Teacher quality: Legislators recognize and support the importance of having qualified teachers in every classroom and to that end have initiated efforts to address teacher preparation, licensure, induction and professional development. Requiring states to have a certified teacher in every classroom within three years ignores the logistics of hiring over 2.2 million new teachers needed in the next decade.
   
   Pressuring states to comply before they are able could lead to policymakers diluting the certification process. We could end up with more teachers who are "certified" but not necessarily more who are qualified. A state's performance toward this goal should be measured against its own progress and states should retain authority to establish specific criteria for teacher licensing and alternative certification.
   
7. Governance: This legislation continues the tradition of federal meddling in the governance of state K-12 education systems. ESEA remains the only major federal program in which a sub-state agency is specifically identified as the recipient of federal funds. Both pieces of legislation directly endow state education agencies with unprecedented authority to receive federal funds directly, to administer federally funded programs without consultation with elected state officials and to make commitments that will, in both the short and long terms, impact overall state policy and state budgets. As but one example, the Senate bill mandates that the state education agency will administer the 21st Century Community Learning Centers. But many states with after school programs have put state resources (as well as TANF resources) for after school programs in human service agencies, not state education agencies. Picking winners and losers in internal state affairs is not an appropriate role for the federal government.
   
8. The National Education Goals Panel: NCSL policy explicitly supports continuation of the Goals Panel. Neither piece of legislation addresses the continuation of this effective intergovernmental effort.
   
9. IDEA: Meeting the 25-year-old federal commitment to fund 40% of average per-pupil expenditures (APPE) remains the most important legislative priority for the nation's legislatures. For the current fiscal year, this $16 billion unfunded federal mandate remains the single most intractable education issue we face as we attempt to improve the performance of our state systems.

We commend the spirit and dedication of the President and members and leaders of Congress who worked diligently to pass H.R. 1 and S.1. Your leadership, words and actions helped to quickly move this legislation through Congress. The goals, concepts and issues raised in the legislation are inarguably important and have been discussed and addressed in many of the states.

However, in this case we feel that expediency has triumphed over good policy. The proposals were not researched thoroughly and their ramifications were not thought through adequately. Ideas were not properly vetted and principles of federalism were ignored. The end result is a conference committee faced with two proposals that have numerous, seriously flawed provisions.

State budgets, particularly those dependent on sales taxes, are reeling from the recent economic downturn. A similar impact is likely on federal receipts and appropriations, decreasing the likelihood that appropriation levels in the federal education legislation will offset the financial burdens imposed by its mandates. We fear that compliance with the federal mandates may be undercut unless states severely reduce other vital areas of their budgets. These cutbacks could very well imperil the progress we have made at the state level in accountability systems, pre-school programs, teacher preparation and certification, class size reduction, facilities upgrades and other critical areas. Many of the concepts promoted in this legislation could be structured as goals rather than mandates. This would enable policymakers at all levels to work cooperatively toward the admirable goals of this legislation with less risk of creating unintended consequences.

Improvements to ESEA should not be made at the expense of our state priorities and initiatives.

The attacks on our country lead all of us to reflect and reevaluate our priorities, commitments and responsibilities. As a nation we face tough decisions. We should make those decisions deliberately and expeditiously without making them hastily. As the only elected officials who have a constitutional duty to provide a system of public education, state legislators must consider efforts to reform federal education programs in light of our responsibilities to the entire public education system.

As a result, our conundrum is as difficult as yours. Do we support flawed federal legislation because others have supported it? Or do we voice our honest opinion that this 'reform' stops us in our tracks and sends us off on a new and not necessarily successful course?

We choose to do our duty by withholding our support for this legislation.

Any of us would be happy to discuss our positions with you or you may contact us through our NCSL staff, David Shreve at 202-624-8187 or at David.shreve@ncsl.org

Sincerely,

Senator Stephen Saland
New York State Senate
President
National Conference of State Legislatures

Senator Jane Krentz
Minnesota Senate
Chair, NCSL Education, Labor and Workforce Development Committee

Representative Ralph Tanner
Chair, Kansas House Education Committee
Vice Chair, NCSL Assembly on Federal Issues

cc: Members of the House-Senate Education Conference Committee

cc: J. Dennis Hastert
Speaker, U.S. House of Representatives

cc: Richard A. Gephardt
Minority Leader, U.S. House of Representatives

cc: Thomas A. Daschle
Majority Leader U.S. Senate

cc: Trent Lott
Minority Leader, U.S. Senate

Delegate James Dillard
Co-Chair, Virginia House of Delegates Education Committee
Vice Chair, NCSL Assembly on Federal Issues

National Conference of State Legislatures

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