States Legislators Group Calls for NCLB Overhaul

Published May 1, 2005

In late February, the National Conference of State Legislatures (NCSL) issued a report challenging the federal No Child Left Behind Act (NCLB), strongly questioning its constitutionality and many of its provisions.

In the report, NCSL–a bipartisan organization that provides state legislators across the country with research and opportunities to discuss common issues–laid out the final findings of its NCLB task force. Task force members attended seven regional meetings across the country and listened to testimony from more than 60 witnesses in reaching their conclusions about NCLB’s impact.

“We believe the federal government’s role has become excessively intrusive in the day-to-day operations of public education,” task force co-chair and New York State Sen. Steve Saland (R-Poughkeepsie) said in a news release accompanying the report. “States that were once pioneers are now captives of a one-size-fits-all educational accountability system.”

Constitutionality Questioned

The report started by examining NCLB’s constitutionality, finding that although the U.S. Constitution’s 10th Amendment leaves authority over education to the states, some federal activity is legitimate under the Constitution’s spending clause, which enables the federal government to attach rules and regulations to money it sends to states.

That power is constrained, though, by requirements laid out by the U.S. Supreme Court in South Dakota v. Dole (1987), the report noted. For instance, spending-clause programs must promote the “general welfare” and be national in scope.

The task force found that although NCLB met the general-welfare and national-scope requirements, it failed to meet three others: that the law not be in conflict with “other constitutional provisions” (NCSL maintains NCLB violates the 10th Amendment); that it be “unambiguous” about conditions linked to funding; and that it persuade states to participate rather than coerce them.

Though the report stopped short of identifying all federal education interventions as unconstitutional, David Shreve, senior director of NCSL’s Education Labor and Workforce Development Committee, said some task force members advocated total federal withdrawal from public education. He said overall, though, the consensus was federal policymakers had “overreached” their authority. Shreve also suggested some members felt federal “influence should be commensurate with funding,” on which Washington has fallen far short, in their view.

Adequate Yearly Progress Questioned

Following its constitutionality discussion, the report examined NCLB’s adequate yearly progress (AYP) provisions, which require states to set annual targets for the percentage of students who achieve proficiency on state math, reading, and, in the future, science tests. The increases must be achieved within states’ entire student populations each year, and by several student subsets–including children with disabilities and those with limited English proficiency. In addition, no less than 95 percent of a population or subset can take the test for it to count.

The task force determined NCLB is too inflexible about AYP, saying it “holds schools to overly prescriptive expectations, does not acknowledge differences in individual performance, does not recognize significant academic progress because it relies on absolute achievement targets, and inappropriately increases the likelihood of failure for diverse schools.”

Similarly, the task force found the proficiency goals for students with disabilities and limited mastery of the English language were “unrealistic.”

The report said states should be given significantly greater latitude in setting AYP goals. For instance, they should be allowed to use “multiple measures in addition to standardized tests” to determine AYP, and to set for themselves the percentage of special education students who can be exempted from AYP calculations.

Flexibility Called For

The task force exhorted federal policymakers to give states greater flexibility in dealing with “unique schools and districts,” such as urban and rural districts, and in setting teacher qualification standards. Among its recommendations, the task force suggested states be given flexibility in determining when and how to provide supplemental services and school choice to students in schools that fail to meet AYP.

The report also argued NCLB’s “highly qualified” teacher standards are too strict, especially the requirement that middle and high school teachers prove they are highly qualified in every subject they teach. NCSL recommended teachers should have to pass only a single evaluation, not one for each subject they teach.

In response to questions about flexibility, officials at the U.S. Department of Education pointed to Assistant Secretary for Elementary and Secondary Education Ray Simons’ February 23 statement about the NCSL report, in which he promised “the Department will continue to work with every state to address their concerns,” while adding NCSL’s “report could be interpreted as wanting to reverse the progress we’ve made” in improving student achievement.

Funding Inequities Noted

The NCSL task force report also tackled funding questions, finding that although federal elementary and secondary education outlays increased by nearly $10 billion in the first three years following NCLB’s passage, “for some states, the new funding may barely cover the costs; for other states the new costs exceed the additional funding by a significant margin.”

The task force recommended Congress ask the Government Accountability Office (GAO) to study the costs of complying with NCLB, peg funding to cost estimates, and let states choose not to participate without losing funding for programs not integral to NCLB, like technology programs or those for safe and drug-free schools.

U.S. House Committee on Education and Workforce spokesman Josh Holly said the NCSL report’s demands made it appear states want “a blank check” from the federal government. Holly noted both Democratic and Republican leaders oppose amending the law before the next reauthorization of the Elementary and Secondary Education Act, scheduled for 2007, likely ruling out the possibility that statutory changes might come soon.

Neal P. McCluskey ([email protected]) is a policy analyst at the Cato Institute’s Center for Educational Freedom.

For more information …

The final report of the NCSL task force on No Child Left Behind is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and search for document #16848.