As New Bush Term Begins, Call for Changes to NCLB

Published December 1, 2004

In a timely essay in the fall edition of The Public Interest, education researchers Chester E. Finn, Jr. of the Thomas B. Fordham Foundation and Frederick M. Hess of the American Enterprise Institute assess the strengths and weaknesses of the No Child Left Behind Act (NCLB), offering 10 recommendations for improvement, five dealing with assessments and five dealing with remedies.

Finn and Hess believe lawmakers should change NCLB to be more flexible with regard to the accountability mechanisms–such as subgroups, timing, and sanctions–and more stringent on standards and testing.

NCLB is a radical overhaul of the 1965 Elementary and Secondary Education Act, with the intent of imposing a “results-based accountability regime on public schools” that will bring all children to proficiency in math, reading, and science. It is based on the popular belief that all children can reach this higher standard, an idea even NCLB critics generally share.

As a genuinely bipartisan product, NCLB is a “Rube Goldberg-like assemblage” of liberal and conservative ideas grafted upon an older body of law. The compromises that led to the bipartisan creation result in inconsistencies, and Finn and Hess warn NCLB’s “perverse incentives, incompatible interests, and unworkable expectations” may undermine the law’s support and outcomes.


The act’s accountability system is built on systematic testing and “forceful remedies” for poor-performing schools. All public schools must test students in grades 3-8 in reading, math, and–starting in 2007–science. Schools must show that students in each grade and subgroup (e.g. race, disability, gender) are making progress toward proficiency in those subjects. States must gear their accountability systems to push all students to proficiency in 12 years.

Schools that fail to attain Adequate Yearly Progress (AYP) toward meeting those standards receive increasingly stringent sanctions for each year they fail to make progress. After two years of missing the mark, a district must give students at the school the opportunity to transfer to a higher-performing school. After three years of missing the mark, students at the school may receive supplemental services such as tutoring from a provider of choice, including private entities. After four years, the school must make a school improvement plan, and after the fifth year the school must be “reconstituted.”

While Finn and Hess herald the wealth of school-level information mandated by the law, they believe the law’s accountability system has problems. They contend the law’s rigid specificity on some aspects of accountability and laxity in other aspects make NCLB both overbearing and ripe for gaming. The 12-year timetable and disaggregation requirements are highly prescriptive and have unintended consequences.

One such consequence is that the law does not distinguish between schools that miss a single benchmark for one subgroup and schools that are failing to teach most of their students to standard. Another consequence is that states have standards, tests, and accountability systems of varying rigor. In addition, states “flout the spirit of NCLB while nominally complying with its letter” by employing various statistical strategies to reduce the number of failing schools.

School Choice

Finn and Hess also call attention to the less-than-effective choice provisions. These were scaled down from the original Bush vision for NCLB. The law stipulates that students in schools in need of improvement be allowed to transfer to a higher-performing school within the district. However, a lack of capacity in many districts made this provision a false promise for many students:

  • In the urban core, schools in need of improvement greatly outnumber successful schools.
  • Charter and magnet schools have waiting lists and schools in the suburbs are not required to take city students.
  • Students in rural schools are often too isolated to have access to other schools.

Supplemental Services

Implementation of the supplemental services provision also has been uneven. While some district leaders see the promise of outside services in boosting achievement, others have been less than welcoming, since districts are allowed to provide the services themselves. This conflict between the roles of regulator and provider has led some districts to discourage outside providers.

Further complicating implementation is the fact that many states test students in late spring and find it difficult to render scores fast enough to provide school-level data and alert parents to their options before the fall semester begins.

Recommended Changes

Given the difficulties experienced since the law’s inception, the authors propose the following 10 solutions:

  • Set federal standards in reading and math for 4th, 8th, and possibly 12th grades using the National Assessment of Educational Progress (NAEP) as a benchmark and gauge of progress. States would be free to set standards and tests in other subjects.
  • Base AYP on academic gains assessed through a value-added instrument. Currently, AYP is based on the aggregate level of student performance. Finn and Hess believe value-added testing would more accurately gauge the value schools impart to students irrespective of outside school factors and prior academic attainment.
  • Create a “safe harbor” for high-performing schools whose test scores are already high and there is little opportunity to make additional annual gains.
  • Using the value-added model, deem schools that “do an adequate job helping pupils to master the prescribed content at a reasonable rate” as having met AYP even if all their students do not attain proficiency.
  • Make AYP more flexible. As an example, the authors propose a system that would distinguish between schools making good progress overall and for 90 percent of their subgroups, schools making progress overall but not for every subgroup, and schools not succeeding overall. This would allow the system to “distinguish between [schools] that are on the verge of succeeding and those that are catastrophically inadequate.”
  • Count students who transfer in from schools in need of improvement differently, so they do not reduce the scores of their new schools. Schools would be assessed but not penalized on the progress of the transfer students; alternately, schools would test but not count these new students for two years.
  • Change testing cycles so parents could receive information and options in a timely fashion and districts could have time to implement choice and supplemental service strategies.
  • Develop the supply of good schools by encouraging more charter schools, interdistrict choice, cyber schools, home schools, and private schools.
  • At schools in need of improvement, give students supplemental services options before giving them intradistrict school choice. Reversing this order would give students a chance to improve their performance and the school’s performance before choice became an option.
  • Bar districts from being both a regulator and a provider of supplemental services. Another entity would make the arrangements for private providers in districts where the district was a provider.

These 10 changes, Finn and Hess contend, would make the “NCLB assessment work as intended,” render “its remedies more effective,” and help NCLB avoid following the path of other Great Society-like programs that started with high hopes and ended with few results.

“History need not repeat itself,” conclude Finn and Hess. “Forty years after the fractured results of LBJ’s noble efforts to ensure equal opportunity in American education, we have a chance to do better. Perhaps even federal policy makers could learn from history.”

Krista Kafer ([email protected]) is senior policy analyst for education at The Heritage Foundation.

For more information …

The article by Chester E. Finn, Jr. and Frederick M. Hess, “On Leaving No Child Behind,” in the Fall 2004 issue of The Public Interest, is available online from the American Enterprise Institute Web site at