Ross Wiener, policy director of The Education Trust, before the National Conference of State Legislatures Task Force on No Child Left Behind

As all of you know, we are coming up on the 50^th anniversary of the landmark Brown v. Board decision, which ended legalized segregation in our schools. But where are we – really – in terms of providing an equal education to all children, 50 years later?

Quite frankly, the picture isn’’t pretty.

Let me share just a couple of illustrations:

1. Nationally, African American and Latino 17-year-olds demonstrate reading and math skills that are virtually indistinguishable from white 13-year-olds. While this analysis is based on NAEP, these gaps are just as prevalent when we look at student achievement on state assessments.
2. These gaps, which had been narrowing through the 1970s and 80s, widened over the course of the 1990s.

These achievement gaps reflect intolerable opportunity gaps that distinguish the public-school experiences of low-income and minority students from their peers. For example:

1. Poor and minority students have less than their fair share of qualified and experienced teachers. In the schools educating the most affluent students, only one-third of math teachers lack a major in math. In the highest-poverty schools, that number jumps to 55%.
2. Students of color and low-income students do not receive curriculum and instruction that is as challenging or rigorous as other students. According to the U.S. Department of Education, less than a third of students from low-wealth families were enrolled in the college prep track, while two-thirds of students from high-wealth families were in college prep.
3. In a majority of states, the districts educating the most students of color get less in state and local funds than the school districts educating the fewest minority students.

This is where you come in. State legislatures have a tremendous responsibility to confront these inequities in our public schools. To meet society’’s needs, public education must do a better job educating all students, specifically poor students, students of color, students with disabilities, and limited-English proficient students. Currently, no state system of public education is adequately meeting the needs of these children. NCLB in essence calls on states to better respond to the needs these children.

As you undertake this review, it is absolutely critical to keep in mind what NCLB requires and, perhaps more importantly, what it does not. Misinformation about how NCLB works has become so pervasive that it consistently finds its way into the media and the public record. For instance, the premise of one of today’’s questions is that NCLB “”creates a federal definition of what constitutes an ‘‘adequate’ education.'”” This is a false statement. States retain exclusive discretion to determine what students should be taught in their public schools. Indeed, states make every decision with respect to the what, where, how, and when of public education. The fundamental issue on which NCLB seeks to restrain state discretion is with respect to “who”; that is, who is entitled to receive an education that meets state standards. Prior to and for reasons entirely unrelated to compliance with NCLB, every state had adopted the policy that all students would be educated up to state standards. NCLB leverages federal funds to entice states to take these standards and the policies implementing them more seriously.

How does NCLB seek to accomplish this objective?

With the 1994 reauthorization of the law, every state promised to adopt standards in at least reading and math that represented what the state expected all students to know and be able to do. Indeed, some states had already set such standards. Every state has by now met this obligation through public deliberations and standards-setting processes. These standards represent a promise that states will provide a public education that gives students the opportunity to meet these standards. But even as states said the words “”all students”” in their policy pronouncements, they were not allocating resources or designing accountability systems to ensure that this promise would be met.

Let’’s start by looking at resource allocation. In every single way we can measure, poor and minority children are short-changed by the systems of public education for which you, as legislators, are ultimately responsible. Despite compelling research that rigorous, challenging courses are critical to raising student achievement, even for previously low-performing students, public education denies rigorous courses to disproportionate numbers of poor and minority children. Even more damaging, low-income and minority students are more likely than other students to have teachers lacking experience, proper credentials, or majors/minors in the subjects they are assigned to teach. Large-scale research, which has been replicated in whole states and large urban districts, establishes that teachers are the single most important resource in student learning. Knowing what we know about the importance of teachers for student learning makes the inequitable distribution of teacher talent the most pernicious opportunity gap. Yet public education pervasively gives less of these teachers to the students who rely on public education the most for their learning.

In addition, in spite of the universal recognition that schools and districts with the highest percentage of low-income students need more resources than other schools, most state funding systems give them less. State funding schemes rely on federal money to level the playing field for low-income students, instead of providing a level playing field in the first instance and using federal dollars for the additional, supplemental supports these students need. If there were no federal law, no NCLB or Title I, would your state governments have less responsibility to provide educational opportunities to your state’s low-income students?

These historical resource inequities, and the achievement gaps to which they contribute, were obscured by state accountability systems. All schools have not been held to the same high standards. Previously low-performing schools were not expected to teach as many students to proficiency as other schools, so their goals were adjusted downward accordingly. In addition, almost every state plan relied on overall school and district averages for making accountability determinations. This meant that schools were rated highly if their overall average was high enough, even when that average masked alarmingly large gaps between groups, as overall averages often do. In far too many schools and communities, state accountability systems failed to set off alarms, even as the schools failed to educate most of their poor, minority, limited-English proficient, and disabled students. In effect, most state accountability plans prior to NCLB institutionalized achievement gaps between high-poverty and low-poverty schools. These flawed accountability systems are, in part, why poverty and race/ethnicity gaps widened over the course of the 1990s.

When Congress considered the reauthorization of Title I in 2000-01, it confronted three disturbing issues (1) growing achievement gaps; (2) state accountability systems that were not aggressively focused on closing these gaps, including the fact that only one state accountability system used disaggregated data to make school accountability determinations; and (3) no progress on equalizing the distribution of teacher talent. Congress demanded that states take cognizance of and at least develop plans to address these problems.

There is an important distinction to be drawn between requiring goals and plans, and ““requiring”” that the goals be met. No one can mandate that children in public education actually learn how to read and do math. What is reasonable to require, however, is that public education commit to reflect on past practice and devise improvement strategies when data reveal that students are not being taught up to standards. That is the essential bargain underneath Title I: public education must assess student learning against state standards in reading and math, publicly release the results, and develop improvement plans where schools, or groups of students, are not meeting ambitious goals for student achievement.

In terms of the specifics of improvement efforts, vast discretion is left to state officials and local educators. NCLB does not purport to tell public education how to respond to the problems that are revealed, it merely establishes a responsibility to respond. There are only two actions that are required of schools that are identified as needing to improve. First, the school district must offer school choice in the first year of the school’s improvement plan, giving priority to the lowest achieving, low-income students who request transfers. As an aside, it is worth noting that the Chicago Sun-Times reported this week that students who transferred in Chicago Public Schools posted much higher than average gains, and much higher than their own previous gains, after the first year of school choice. Second, in their second year of improvement efforts (if the school still is not meeting the state’s student achievement goals), schools must make supplemental services (tutoring) available to low-income students. Tutoring is only available to low-income students who decide to stay in their local school as it implements its improvement plan. School choice and supplemental services are paid for exclusively with a set-aside of Title I funds. No state or local funds whatsoever are required to administer these programs.

Beyond these two requirements, states and districts make all the decisions regarding school improvement activities. There is no federal oversight or review of school improvement efforts. None of the most extreme interventions, such as state takeovers or conversions to charter schools, are allowed under NCLB unless state law authorizes them. States are the final arbiters of what will and will not happen in their public schools. In terms of accountability, there is a big fiction that states are now accountable to the federal government for student achievement. But states have merely promised the federal government they will have goals and systems in place; states have not promised any particular outcomes. Whether your states make any progress on raising student achievement, and whether they make any progress getting more qualified teachers to the students who desperately need them, they will continue to receive their federal subsidies for public education.

So why, one might wonder, is there all the hand-wringing and complaining about the federal government demanding 100% accountability for only 8-9% of the funding? In reality, NCLB makes state governments, and public education specifically, more accountable to the public they are established to serve. Data that was once treated like confidential and proprietary information now needs to be publicly disseminated so that all stakeholders have access to the same data on which to evaluate public education. Improvement plans must be public documents so that state- and district-level commitments to help struggling schools are a matter of public record. This means that public officials can be evaluated on whether they followed through on their commitments. The same is true with respect to plans to provide an adequate supply of qualified teachers. In the end, it makes no sense for state officials to be worried that NCLB will “”make them”” do things that are bad for public education, because they make all the important decisions in this regard. The biggest risk is to state officials who aren’t willing to proactively confront inequities in public education, who will appear to be doing too little to address a critical public priority. This will be especially true as the public comes to better understand the scope and scale of achievement gaps.

Demanding that state officials set ambitious goals for raising student achievement and narrowing gaps only makes sense if there are actions these officials can take to address the problems. There are.

The first question you asked me to address is whether ““independent research”” establishes that all children can be taught to be proficient in reading and math.  There is ample proof that we can do much, much better educating each of the groups of students on which NCLB asks you to focus. In every one of your states, there are real life examples of schools and districts that are doing much better than others. Some of them are already teaching virtually 100% of their students up to state standards of proficiency. Many, many others are meeting their current AYP targets and gearing up for increased student achievement in the years to come. Moreover, there is independent research by economists which concludes that, if public education assigned its most effective teachers to low-income students, we could eliminate the gap that separates poor students from their more affluent peers.

Unfortunately, we have never provided the conditions that would allow us to conclusively answer whether all students can be taught to high standards. This much we know from past practice and current conditions: we cannot educate all students up to high standards by giving the least resources to the most vulnerable students.

What results could public education achieve by flipping this equation and giving the most resources to the students who rely on public education the most for their learning? This is, tragically, an open question. There are some wonderful images of success that demonstrate we can take many more young people to higher levels of achievement. But equity in public education has never been brought to scale.

Before anyone can answer the question of what is possible in improving student outcomes, you must address the devastating opportunity gaps that plague public education. Allow me to provide a concrete example of how you can begin to do that. As a condition of participating in NCLB, each state committed to articulate the specific steps it will take ““to ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers, and the measures that the state educational agency will use to evaluate and publicly report the progress of the state educational agency with respect to such steps.”” (20 U.S.C. § 6311(b)(8)(C)).

This provision demands an accounting of the inequitable distribution of teacher talent and a plan, with quantifiable measures and public reporting, to address this historic inequity. The law does not mandate results; it demands an acknowledgment of the problem and public reporting on progress toward addressing it. Moreover, NCLB provides $3 billion per year above and beyond Title I funds to focus specifically on addressing this problem.

I assume that everyone will acknowledge that it is immoral and counter-productive to assign poor and minority students disproportionately to inexperienced, unqualified, and out-of-field teachers. It is, at the very least, incompatible with ensuring that all students have the opportunity to meet high standards. Yet, I do not know of a single state that has met its obligation to develop this plan, and I wonder how many among you has requested to see this plan from your state department of education. Until you give historically under-served students the same opportunities to learn, how can you know how much they can learn?

Yet one of the questions you asked me to answer pretends this is not an issue. It asks me to address whether “”standards, high expectations, and testing are necessary and sufficient conditions”” for 100% proficiency. This is not, as the question states, ““the philosophical underpinning of NCLB,”” and the answer to this absurd question is, of course, no. What we do in public education — what curriculum is used, who is hired to teach, what support is given to these teachers — matters tremendously in terms of how much students learn. Standards, tests, and accountability are merely systems to determine to what extent our aspirations for student learning are being realized. They are not the substance of teaching and learning. The question itself is a misinformed caricature of the law. Standards, high expectations, and testing are in fact necessary but not sufficient for raising student achievement. NCLB in no way implies that standards and accountability alone will raise student achievement.

Good faith attempts at meeting the law’’s goals are an imperative prerequisite to determining what works and what does not in NCLB. Before this inquiry makes any sense, state systems of public education need to attempt serious, systemic change. Once systems can claim to have re-tooled to meet the goal of teaching all students to proficiency, only then can we discover what, if anything, is unworkable in the federal law. The current posture, however, is to project an inability to advance the law’s ambitious objectives based on current operating procedures.

You also asked me to address how important it is that federal appropriations reach authorization levels. The answer is that, politically, you have made it very important. The backlash that has been fomented against NCLB as an unfunded mandate is fueled by misinformation (e.g., that schools will lose their federal money or otherwise be “”punished”” if they do not meet their goals), but no one will deny that a backlash has been created. In this regard, I have to note that opposition to NCLB is extremely hypocritical in states with high-stakes graduation exams. These states have decided as a matter of state policy, quite apart from any NCLB requirement, that every student should be accountable for learning to be proficient in at least reading and math. To then resist holding schools accountable to the same standard is incongruous and terribly unfair to students.

If Title I of NCLB were funded to the fully authorized level, it would increase funding for K-12 education by less than 2%. Given all of the inequitable ways in which systems of public education currently distribute available resources, there is nothing to indicate that if they had 1.5% more dollars to spend, that this money would be used effectively to raise achievement of the lowest-performing students. Fundamentally, there needs to be an open and frank discussion of what public education needs to better serve all students and better meet the needs of society for well-educated citizens, workers, and voters. While this may very well require increased money, it will also require systemic change unrelated to new money. For example, we most likely need to pay teachers more to entice more of them — with more math, science, and bilingual skills — into our hardest-to-staff schools. But given current single-salary schedules and seniority rights that allow teacher prerogatives to trump educational priorities, additional money without systemic change would exacerbate as opposed to ameliorate inequality in teacher quality. This, in turn, would widen the achievement gaps you seek to eliminate.

It is absolutely an appropriate role of federal government to leverage its investment to entice states to better meet their responsibilities to educate all children. It is preferable by far for state political leaders to voluntarily determine the amount of money the state’s public schools need to provide all students with an adequate education. Maryland provides a good example of a state that has undertaken such a process outside the context of any court order to do so. But if state political leaders avoid doing this, it is entirely appropriate and constructive that the federal government should aid those who seek to vindicate the rights of children. As the Supreme Court recognized 50 years ago in Brown v. Board of Education,

[Education] is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

While public education is fundamentally a state responsibility under the Constitution, there is an obvious interest on the part of the federal government in ensuring that states meet these responsibilities in ways that do not undermine national interests. Congress has appropriately determined that race and income achievement gaps, as well as the under-education of students with disabilities and limited-English proficient students, present national problems, which need to be addressed with national policies.

Finally, to the large question you asked me to address: Will NCLB work? In one important sense, it is already working. This country needs to confront deep and unacceptable inequities in public education. NCLB has made the focus on achievement gaps more prominent. It is responsible for advancing the national conversation, at every level of government and in many other social institutions, regarding whether and how public education can better fulfill its mission. I participated in a panel discussion yesterday with Washington State Superintendent Terry Bergeson, who said unequivocally that educators and policymakers in Washington State badly needed the wake-up call and the focus on gaps provided by NCLB.

But whether NCLB will have the desired effect of raising student achievement and narrowing gaps is largely up to you. As leading education policymakers in your respective states, no one is better positioned to advance this agenda. You have the ability, and the responsibility, to help public education achieve its potential to teach all students to high standards. There are thousands of teachers, principals, and support personnel out there in our public schools everyday, committed to making sure all students are taught to high standards. Your role is to honor their service with the policies and resources to ensure they succeed in this important mission.

I thank you for the opportunity to discuss these issues with you, and I look forward to your questions.