Final Report

NO CHILD LEFT BEHIND COMMITTEE

North Dakota Century Code (NDCC) Section 54-35-21, enacted in 2003, requires the Legislative Council to appoint an 11-member committee to study the No Child Left Behind Act of 2001, the direct and indirect impact of the Act on the school districts of this state, and the financial impact of the Act on the budget of this state and on the taxpayers of this state. The council also directed the No Child Left Behind Committee to receive information from the Superintendent of Public Instruction regarding the estimated costs that are likely to be incurred by this state during the ensuing eight years to meet the requirements of the No Child Left Behind Act of 2001.

Committee members were Representatives RaeAnn G. Kelsch (Chairman), Bob Hunskor, Lisa Meier, David Monson, Margaret Sitte, and Clark Williams and Senators Dwight Cook, Layton Freborg, Gary A. Lee, Ryan M. Taylor, and Rich Wardner.

The committee submitted this report to the Legislative Council at the biennial meeting of the Council in November 2004. The Council accepted the report for submission to the 59th Legislative Assembly.

NO CHILD LEFT BEHIND ACT OF 2001 STUDY

Background

In 1965 President Lyndon B. Johnson signed into law the Elementary and Secondary Education Act. The purpose of that Act was to close the achievement gap that existed between advantaged and disadvantaged children. Before that time, there had been no allocation of federal funds to the individual states for the purposes of elementary and secondary education. That Act has been reauthorized by Congress every six to seven years.

The 1994 Congressional reauthorization of the Elementary and Secondary Education Act was called the Improving America's Schools Act. Congress found that after nearly 30 years of federal intervention in elementary and secondary education, the achievement gap still existed. Consequently, the 1994 Act sought to change the way education is delivered. The 1994 Act encouraged comprehensive systemic school reform, upgraded instructional and professional development to align with high standards, strengthened accountability, and promoted the coordination of resources to improve education for all children. The 1994 Act imposed requirements on states that received Title I funding. Those requirements included:

Submitting to the United States Secretary of Education an accountability plan of standards and assessments developed in consultation with local education agencies.
Developing challenging content standards and challenging student performance standards.
Developing a system of high-quality yearly student assessments, including assessments in reading and mathematics.
Disaggregating the assessment results by gender, racial and ethnic group, English proficiency status, migrant status, disability, and economic status.
Demonstrating adequate yearly progress based on the state's assessment system.

Congress determined that such stringent requirements together with high academic standards were needed to promote a national program of education reform. What the 1994 Act lacked, however, was a timeline within which the states were to act and consequences for those states that failed to act.

When President George W. Bush took office, only 11 states were in compliance with the 1994 Act and no state was denied funding for not complying with the law.

In 2001 the law was again reauthorized. This version was called the No Child Left Behind Act. As did the previous law, the No Child Left Behind Act requires each state to submit an accountability plan of standards and assessments. Unlike the previous law, the No Child Left Behind Act required all states to submit their accountability plans to the United States Secretary of Education by a date certain, which was June 2003. All 50 states, together with the District of Columbia and Puerto Rico, met that deadline.

As did the previous law, the No Child Left Behind Act requires each state to implement challenging content standards and performance standards.

As did the previous law, the No Child Left Behind Act requires each state to set up a system of high-quality assessments and to disaggregate those assessments by subgroups. Unlike the previous law, the No Child Left Behind Act provided funding for the development and implementation of the assessment systems.

As did the previous law, the No Child Left Behind Act requires each state to demonstrate adequate yearly progress. Unlike the previous law, the No Child Left Behind Act provides options for students attending schools that do not meet the goal of adequate yearly progress.

In crafting the No Child Left Behind Act, Congress recognized that there was diversity among the states and therefore gave states the flexibility to provide the substance for adequate yearly progress in their plans and to define advanced, proficient, and basic levels of achievement. States were given the flexibility to determine minimum group size for accountability, to define their major ethnic and racial groups, and to determine annual measurable objectives. States were also given the flexibility to integrate adequate yearly progress with previously existing accountability systems, to account for unique schools such as small rural schools, and to determine testing standards for new teachers and evaluation standards for experienced teachers.

The No Child Left Behind Act passed by an overwhelming bipartisan vote in Congress and was signed into law on January 8, 2002. Since passage of the Act, federal funding for education has grown by 36 percent. The President's 2005 fiscal year budget proposal increases federal funding to $57.3 billion. North Dakota's Title I funding proposal is $33.1 million--an increase of $11.4 million over 2001 levels.

Standards and Assessments

The No Child Left Behind Act requires each state to adopt challenging academic content standards and challenging student achievement standards that are applicable to all schools and all students in the state. The standards may apply to whatever subjects a state selects but, at the very least, they must include mathematics and reading or English language arts. Beginning in the 2005-06 school year, the standards must also include science.

The academic content standards must:

Specify what students are expected to know and be able to do.
Contain coherent and rigorous content.
Encourage the teaching of advanced skills.

The student academic achievement standards must:

Be aligned with the state's academic content standards.
Describe two levels of high achievement (proficient and advanced) that determine how well children are mastering the material in the academic content standards.
Describe a third level of achievement (basic) to provide complete information about the progress of the lower-achieving students toward mastering the proficient and advanced levels of achievement.

In June 2002 the Superintendent of Public Instruction submitted the state's accountability plan to the United States Department of Education. The plan set forth as performance goals or statements of expectation that:

All students will reach high standards and at a minimum attain proficiency in reading or English language arts and in mathematics by 2013-14.
All limited English proficient students will become proficient in English and will reach high academic standards and at a minimum attain proficiency in reading or English language arts and in mathematics.
All students will be taught by highly qualified teachers.
All students will be taught in environments that are safe, drug free, and conducive to learning.
All students will graduate from high school.

The Superintendent of Public Instruction also adopted performance indicators that are designed to ensure progress toward the attainment of the performance goals.

With respect to the actual standards, the state accountability plan provided that academic content standards applicable to grades 4, 8, and 12 had already been developed and adopted in the areas of English language arts and mathematics. The standards were developed by the Department of Public Instruction in accordance with the North Dakota Standards and Assessment Development Protocols and overseen by a state level advisory committee consisting of representatives from local school districts and Department of Public Instruction staff.

The English language arts standards were first drafted in 1996 and the mathematics standards were first drafted in 1999. The Superintendent of Public Instruction therefore opted to undertake a revision of both during 2004. With respect to science, the No Child Left Behind Act requires the development of content and achievement standards for implementation in the 2005-06 school year. The Superintendent of Public Instruction has contracted with McRel to serve as the project facilitator and has contracted with 35 teachers from across the state to serve on the drafting committee. An additional 30 teachers will serve as reviewers. The standards are expected to be complete in March 2005 and will thereafter be forwarded to CTB/McGraw-Hill for alignment of the assessments with the standards.

Accountability

The No Child Left Behind Act requires each state to develop and implement a single, statewide accountability system, which will be effective in ensuring that all local school districts and all public elementary and high schools make adequate yearly progress. Each state accountability system must:

Be based on the state's academic standards and academic assessments and must take into account the achievement of all public elementary school and high school students.
Include sanctions and rewards, such as bonuses and recognition, by which a state can hold its school districts and public elementary and high schools accountable for student achievement and for ensuring that adequate yearly progress is made.

The state accountability plan provided that assessments, like content standards, had already been developed and adopted in English language arts and in mathematics at grades 4, 8, and 12, in accordance with the North Dakota Standards and Assessment Development Protocols. State assessments in science will be available for use in the 2007-08 school year.

From 2001-04, CTB/McGraw-Hill was the primary contractor for the development and administration of the state assessments. During that time, the assessment system was subjected to three technical quality peer review sessions. These sessions were facilitated by the United States Department of Education and performed by committees of independent assessment specialists. The reviews were designed to assess how well a state did in meeting the technical requirements of the No Child Left Behind Act and to analyze a variety of criteria, including alignment to standards, the inclusion of all students, validity and reliability, the reporting of results, public accessibility, support services, and accountability measures.

On October 15, 2003, the Superintendent of Public Instruction released a request for proposals regarding the provision of the North Dakota state assessments for the next three to five years. In December 2003 the Superintendent convened two separate committees to review all the proposals and to recommend a preferred bidder. In January 2004 the Superintendent announced that CTB/McGraw-Hill had again been awarded the contract.

Adequate Yearly Progress

The No Child Left Behind Act requires each state to demonstrate what constitutes adequate yearly progress toward meeting the academic achievement standards with respect to the state, each of its school districts, and all of its public elementary and high schools. Although each state is permitted to define what constitutes adequate yearly progress, the definitions must:

Apply the same high standards of academic achievement to all public elementary and high school students in the state.
Be statistically valid and reliable.
Result in continuous and substantial academic improvement for all students.
Measure the progress of public elementary schools, high schools, school districts, and the state on the basis of academic assessments.
Include separate measurable annual objectives for continuous and substantial improvement in the achievement of:

All public elementary school and high school students; and

Economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency.
Include graduation rates for public high school students.
Include at least one other academic indicator, as determined by the state for all public elementary school students.

The definitions may also include other academic indicators, as determined by the state for all public school students and measured separately for each subgroup, such as achievement on additional state or locally administered assessments; decreases in grade-to-grade retention rates; attendance rates; and changes in the percentage of students completing gifted and talented, advanced placement, and college preparatory courses.

In North Dakota a school is identified as having met adequate yearly progress if, considering statistical reliability, its student scores on the state assessment meet or exceed the state's annual performance goals for the composite and for each subgroup and if its rate of student participation on the state assessment meets or exceeds 95 percent for the composite and for each subgroup. If the school is an elementary school, its student attendance rate must meet or exceed 93 percent and if the school is a high school, its graduation rate must meet or exceed 89.9 percent. The stated percentages for student attendance and graduation are the state rates.

Before a school is identified as not meeting adequate yearly progress, the state plan requires that the Superintendent of Public Instruction must be able to make that determination with an assurance rate that exceeds 99 percent. If on the initial review the Superintendent is not able to determine that a school did not meet adequate yearly progress with that level of assurance, the Superintendent must roll up two years worth of data. If the Superintendent is still not able to determine that a school did not meet adequate yearly progress with the 99 percent level of assurance, the Superintendent must then roll up three years worth of data. If the 99 percent rate is not reached at that point, Safe Harbor is employed. Under this method, if a school is able to demonstrate that the number of subproficient students was reduced by 10 percent, the school will be found to have met adequate yearly progress. The fifth and final level of review allows for the implementation of a special rule applicable to Title I schools. The special rule allows the Superintendent to consider only the Title I students and if those students met or exceeded the expected level of improvement, the school is determined to have met adequate yearly progress.

For the 2003-04 school year, the Superintendent of Public Instruction determined the adequate yearly progress status of 486 schools--406 schools met adequate yearly progress, 45 schools did not meet adequate yearly progress, and 35 schools had data insufficient for the Superintendent to make a determination.

If a Title I school is identified for two consecutive years as not meeting adequate yearly progress, the school is placed on program improvement. Based on the 2003-04 assessments, no additional schools were placed on program improvement and three that had been in program improvement were removed from the list because they met adequate yearly progress for two consecutive years. The following schools are currently on program improvement:

Dunseith Elementary School.
Dunseith High School.
Edwin Loe Elementary - New Town.
Four Winds Community High School.
Fort Yates Elementary School.
Fort Yates High School.
Mandaree High School.
Oberon Elementary School.
Pettibone Elementary School.
Selfridge Elementary School.
Selfridge High School.
Solen High School.
St. John High School.
Turtle Mountain Elementary School - Belcourt.
Turtle Mountain Middle School - Belcourt.
Turtle Mountain High School - Belcourt.
Twin Buttes Elementary School.
Warwick High School.
White Shield Elementary School.
White Shield High School.

If a school is placed on program improvement, the school must develop a two-year improvement plan, incorporate strategies from scientifically based research, strengthen the core academic subjects, and address the specific issues that caused the school to be identified. Ten percent of the school's Title I funds must be set aside for professional development activities that directly address the causes of the identification and the school district must provide students attending the school with the option of attending another public school that is not identified as being in program improvement. Transportation to the other school must be provided by the student's regular school district for so long as the regular school is in program improvement.

If a school has not met adequate yearly progress for three consecutive years, the school choice option is continued and, in addition, the disadvantaged students within the school must be allowed to obtain supplemental educational services from a public or a private sector provider selected by their parents. If a school has not met adequate yearly progress for four consecutive years, the school district must also consider corrective actions, such as replacing staff or implementing a new curriculum. After five years the district must make arrangements for alternate governance, state takeover, private management contracts, conversion to a charter school, or significant staff restructuring.

Highly Qualified Teachers

Under the No Child Left Behind Act, "highly qualified" means that an individual has passed the state teacher licensing examination; holds a license to teach; and has not had licensure requirements waived on an emergency, temporary, or provisional basis. To be deemed highly qualified under the Act, an elementary teacher who is new to the profession must hold at least a bachelor's degree and have demonstrated, by passing a rigorous state test, subject knowledge and teaching skills in reading, writing, mathematics, and other areas of the basic elementary school curriculum.

To be deemed highly qualified under the Act, a middle school or high school teacher who is new to the profession must hold at least a bachelor's degree and have demonstrated a high level of competency in each of the academic subjects in which the individual teaches. This may have been done by passing a rigorous state academic subject test in each of the academic subjects in which the individual teaches or by successfully completing, in each of the academic subjects in which the individual teaches, an academic major, a graduate degree, coursework equivalent to an undergraduate academic major, or advanced certification or credentialing.

To be deemed highly qualified under the Act, an elementary, a middle school, or a high school teacher who is not new to the profession must hold at least a bachelor's degree and either have met the requirements applicable to new teachers at the appropriate level of instruction or have demonstrated competence in all the academic subjects in which the individual teaches based on a high objective uniform state standard of evaluation that:

Is set by the state for both grade appropriate academic subject matter knowledge and teaching skills.
Is aligned with challenging state academic content and student academic achievement standards and developed in consultation with core content specialists, teachers, principals, and school administrators.
Provides objective, coherent information about the teacher's attainment of core content knowledge in the academic subjects in which an individual teaches.
Is applied uniformly to all teachers in the same academic subject and at the same grade level throughout the state.
Takes into consideration, but is not based primarily on, the time the individual has been teaching in the academic subject.
Is made available to the public upon request.
May involve multiple, objective measures of teacher competency.

To provide individuals who are new to teaching and those who are not new to teaching with the greatest possible amount of time to understand and meet the new expectations, the Education Standards and Practices Board in May 2003 hosted a Community Building Day in Bismarck. Approximately 600 administrators, principals, and other individuals attended. During July 2003 the board held eight regional meetings for teachers, administrators, representatives from institutions of higher education, and other individuals to again highlight the new expectations. In November 2003 the board published a Toolkit--a booklet of definitions, directions, procedures, guidelines, and forms designed to help individuals become highly qualified teachers in North Dakota.

There are multiple ways in which an individual can become a highly qualified teacher in North Dakota. If the individual has a major, such as a composite science degree, or a minor, the individual can take additional coursework. The individual can also take the Praxis II test, complete a portfolio, obtain an advanced degree in a content area, or obtain the National Board for Professional Teaching Standards certification. The Toolkit allows individuals to review their transcripts and experiences and determine which method best suits their needs.

In January 2004 the North Dakota University System conducted free transcript reviews for those individuals who did not meet the definition of highly qualified and who would be returning to an institution for additional coursework. For those who selected to use the portfolio option to become highly qualified, the board provided regional trainers to assist teachers with the construction of their portfolios and provided a panel of assessors to evaluate the portfolios. The portfolio option is not based on a pass/fail. Either the portfolio allows for a declaration of highly qualified or the individual is asked to provide additional information or documentation.

State Accountability Plan - Study

When the state accountability plan was submitted to the United States Department of Education, one of the conditions to its approval was that the state must conduct an extensive study of the plan's various provisions, including those relating to validity and reliability. The Superintendent of Public Instruction therefore proposed the creation of a 25-member statewide accountability committee. The committee would include five members from the Title I Practitioners' Committee, five members from the Individuals With Disabilities Education Act Advisory Committee, five members from the Standards and Assessments Learning and Teaching team, a representative of the North Dakota Education Association, a representative of the North Dakota School Boards Association, a representative of the North Dakota Council of Educational Leaders, a representative of the Indian Affairs Commission, a representative of the Governor, staff members from the Department of Public Instruction, and one legislator appointed by the Legislative Council. The Superintendent has contracted with national accountability and assessment consultants to serve as advisors to the committee.

Over the years the Superintendent of Public Instruction and the Department of Public Instruction staff have involved hundreds of educators in the development of content and achievement standards, assessments, alignment of assessments to standards, the design of assessment reports, the alignment of cut points to achievement standards, and the development of protocols and policies. Educators were also involved with the Elementary and Secondary Education Act and the Individuals With Disabilities Education Act programming and policy committees, the development of accreditation standards, peer reviews of discretionary grants, statewide technology committees, and data collection and analysis projects, among others. The Superintendent believes it is wise not only to continue this broad level of educator involvement in the study process but also to rely on the expertise, the insight, and the contributions of the state's education community in reviewing the accountability plan and making changes that will ensure a sound and sustainable system over the long term.

Opposition to the No Child Left Behind Act and to Its Implementation

Over the course of the interim, the committee heard many positive things that were happening in the teaching profession, in the classrooms, and at the managerial level because of the requirements of the No Child Left Behind Act. However, the committee also heard about the changes that the Act necessitated or will necessitate regarding the manner in which education is delivered and the burden that such changes placed or will place on teachers, schools, and school districts in the state.

Teachers

Opponents testified that the requirement for highly qualified teachers would cause many teachers to retire rather than become highly qualified and that districts would lose those teachers who are not highly qualified. A concern was also raised that districts with highly qualified teachers would be at risk of losing them to other districts that could and would pay more. The issue most fervently raised by the opponents was that teachers should be permitted to teach in the areas in which they hold minors.

Testing

Opponents testified that the progress of students could be better measured through the use of cohort testing rather than programmatic testing and that a more equitable measurement of the progress made by special education students would result from testing such students at their instructional level not at the grade level in which they are placed. It also was argued that the 1 percent student cap on the use of alternate assessments was woefully inadequate and should be increased.

Adequate Yearly Progress

Opponents testified that the large scale firing of staff and the takeover of schools that have not met adequate yearly progress for five consecutive years is inappropriate and should not be permitted.

Truancy

Opponents testified that in some schools student attendance is an issue and they raised a specific concern about tribal courts that provide students with the option of attending school or going to jail. It was contended that such students are not committed to the learning process. It was also contended that the No Child Left Behind Act takes no steps toward requiring that parents actually send their children to school. The premise raised was that student failure cannot be blamed solely on teachers and that parents and students play a major role in the education process.

Superintendent of Public Instruction and the Department of Public Instruction

Opponents testified that the Department of Public Instruction has become a regulatory agency for the No Child Left Behind Act in this state and that this is not the role that the department should have. It was even suggested that the department should be under the direction of an elected or an appointed board of education, which would in turn select the chief school officer. It was charged that there has been a lack of communication between the Department of Public Instruction staff and the education interest groups in the state and as a result documents were submitted to the United States Department of Education without any comprehensive and continuing involvement from the education interest groups. These assertions were most strongly directed toward the selection of assessments and the establishment of cut scores.

Finances

Opponents testified that the requirements of the No Child Left Behind Act validate the need for full-day kindergartens and for an extended school year within which summer school, tutoring, special services, and professional development activities can occur. Opponents testified that additional resources were needed so curricula could be aligned, standards could be implemented, and that highly qualified teachers could be paid more. Opponents also suggested that there be shared vision, incentives, and funding flexibility.

Coalition of Education Interest Groups

Representatives of the North Dakota Council of Educational Leaders, North Dakota Education Association, and North Dakota School Boards Association joined forces to provide the committee with a list of concerns they believed needed to be addressed. The members of this coalition stressed that they supported holding schools accountable and understood the importance of the No Child Left Behind Act in the education process. The coalition also indicated that its members saw major problems with the No Child Left Behind Act. The coalition therefore presented a variety of recommendations that it concluded will result in every child ultimately moving to a higher level of achievement.

The first recommendation was that an advisory commission be established to provide input to the Superintendent of Public Instruction and to appropriate legislative committees. This advisory commission would also monitor progress and facilitate changes to the state's accountability plan. The proposed membership of this advisory commission would include two representatives of the North Dakota Council of Educational Leaders, two representatives of the North Dakota Education Association, two representatives of the North Dakota School Boards Association, two staff members from the Department of Public Instruction, one representative of the Governor, and six legislators.

The second recommendation was that individual education programs be used for the assessment of progress by special education students who have significant impairments and that the 1 percent cap for alternative assessments be raised to 5 percent.

The third recommendation was that the binomial distribution formula not be used in determining adequate yearly progress and that schools not be identified if they have fewer than 30 students in regular education or 45 students in special education.

The fourth recommendation was that special education students and English language learners be eliminated as subgroups for the determination of adequate yearly progress. The theory advanced was that the inherent language and cognitive barriers of such students create unique assessment challenges.

The fifth recommendation was that students' academic growth be measured by cohorts to determine adequate yearly progress instead of using a status or programmatic measurement that compares groups of students as they pass through a grade level. It was stated that programmatic measurement is adequate for curricular issues but that students, the school districts, and their communities would be best served by seeing how much students grew academically from year to year.

The sixth recommendation was that school districts should be allowed to use their supplemental service funds to make supplemental services available within their district or consortium. It was stated that a school district could make licensed teachers available and function as the supplemental service provider rather than purchasing services from outside providers.

The seventh recommendation was that high school graduation rates should be extended to six years rather than the standard four years. It was stated that this would prevent a school's graduation rates from being impacted simply because a student elects to take one or two additional years to obtain a high school diploma.

The eighth recommendation was that teachers licensed as of July 1, 2003, should be considered highly qualified and they should be permitted to continue teaching in the areas of their minors. The recommendation also included a redefinition of core areas so that the highly qualified requirement would apply only to those subjects that must be assessed under the No Child Left Behind Act. It was stated that North Dakota teachers have proven their ability to deliver a quality education and that rural schools do not have the luxury of hiring a teacher for every core area.

The final recommendation was that the No Child Left Behind Act be fully funded. It was stated that even though the true costs of the No Child Left Behind Act are not known, it is known that the existing resources are inadequate.

Department of Public Instruction Response to Coalition Recommendations

Department of Public Instruction staff indicated that their efforts to date have focused on meeting the requirements of the No Child Left Behind Act and its accompanying regulations and through use of its 25-member advisory committee, creating a good, sound, and sustainable education system. It was pointed out that the advisory committee established by the Superintendent of Public Instruction builds on the expertise of the education community and on the insight and contributions of North Dakota educators who have participated in the standards establishment and school improvement process for many years. The advisory committee includes researchers, developers, technicians, and individuals who focus on reporting results. The advisory committee also includes representatives from McRel, the National Center for Improvements in Education Assessments, and the National Center for Education Outcomes. The advisory committee will be charged with examining the clarity and quality of the state's content standards, the clarity and accuracy of the state's achievement standards, and the quality, reliability, and validity of the state's assessments, including both regular and alternate assessments. The advisory committee also will be charged with studying every element of the No Child Left Behind Act and the accompanying regulations, studying best practices, and most importantly, reviewing data. The Superintendent firmly believes that any change to the state plan must be based upon a complete and thorough understanding of the proposed change and its impact on all other areas and that this is the formula for ensuring the best policy decisions for the future.

Department of Public Instruction staff drew a significant distinction between the role and function of the Superintendent's advisory committee, as set forth in the state accountability plan, and the proposed role and function of the advisory commission suggested by the coalition. Despite the nomenclature, the commission suggested by the coalition was thought not to be focused on advising the Superintendent of Public Instruction and the Department of Public Instruction but rather on wanting governance and control.

With respect to how special education students are assessed and specifically with respect to the suggestion that the 1 percent cap for alternative assessments be raised to 5 percent, the Department of Public Instruction staff indicated that the state has not yet gone beyond 1 percent in terms of the number of students actually administered alternate assessments. Although other states have requested an increase, the United States Department of Education has been reluctant to raise that percentage. It was suggested that this issue should be given further study by an advisory committee and particularly from a policy perspective. An increase in the alternate assessment cap to 5 percent would indicate a belief that half of all special education students are considered incapable of being tested.

Department of Public Instruction staff suggested that the recommendation regarding the use of an end value as opposed to a binomial distribution formula should be studied by an advisory committee and that a determination should be made regarding the level of protection given to our schools. Preliminary indications are that employing an end value of 30 would have resulted in a higher rate of identification than did use of the binomial distribution formula.

The coalition's proposal to eliminate special education and English language learners as subgroups for the determination of adequate yearly progress was viewed by the Department of Public Instruction staff as being beyond the scope of what could be addressed at the state level. Department staff pointed out that the subgroups are clearly established by the No Child Left Behind Act and their removal would require Congressional action. Department staff referred to any discussion regarding the proposed removal of subgroups as both important and value-laden. It was suggested that one of the premises behind the No Child Left Behind Act was that a state should look at improving its service to all of its students rather than effectively removing certain students from the discussions.

Department of Public Instruction staff acknowledged that the recommendation regarding the use of cohort testing arises frequently and progress can be measured based on a student, class, school, or larger group. In fact, Department of Public Instruction staff suggested that all levels of measurement would be ideal. However, it was also stated that there must be clarity regarding what is being measured. An assessment of programmatic growth will yield different information than will an assessment of cohort growth. Often teachers complain they are being held accountable for outcomes that are beyond their control. However, in the measurement of cohorts, teachers cannot control the ability level of students, the number of students in a classroom, the students' family background, the level of parental support, or the native languages of the students. On the other hand, what happens within a classroom--the educational program--is largely under the control and influence of a teacher. The educational experiences in which students engage, the teaching techniques used, the timing and pace of the curriculum, and how learning is practiced were said to be largely within the control of a teacher. Programmatic growth focuses on the impact of such variables.

Even though programmatic growth is the model required by the No Child Left Behind Act, it is not an invention of the Act. For over 15 years, it has been used to demonstrate how well a school is doing, how well a school's curriculum is performing, and how well a school's textbook series is doing in getting students to learn. The No Child Left Behind Act is based upon the premise that each school, rather than each student, needs to make adequate yearly progress. Initially assessments were given at grades 4, 8, and 12. Provisions are now being made to offer additional assessments in grades 3 through 8. That move will allow individuals to look at cohort progress as well as programmatic progress.

With respect to the coalition recommendation that supplemental service funding should be made available to school districts so that such services might be developed and provided within a district, Department of Public Instruction staff testified that school districts, joint powers organizations, and even individual teachers are eligible to become supplemental service providers. The only limitation is that a school district that is in program improvement may not become a supplemental service provider. Supplemental service providers do not have to be licensed teachers and are not required to meet the highly qualified standard. However, they must complete an application. To date, only seven individuals have sought to become supplemental service providers. No school or school district has applied.

Department of Public Instruction staff also addressed the coalition recommendation that high school graduation rates be extended to six years rather than the standard four years. It was said that this extension is not permitted under federal regulations. However, the department has initiated negotiations with the United States Department of Education regarding this topic.

Because teacher licensure in this state falls under the purview of the Education Standards and Practices Board, the Department of Public Instruction staff did not address the coalition's recommendation that teachers be permitted to continue teaching students in the areas of their minors, except to reference the definition of highly qualified in the No Child Left Behind Act and to point out that the definition requires the passing of a rigorous state academic subject test in each of the academic subjects in which the individual teaches or successful completion, in each of the academic subjects in which the individual teaches, of an academic major, a graduate degree, coursework equivalent to an undergraduate academic major, or advanced certification or credentialing.

The final coalition recommendation that the No Child Left Behind Act be fully funded was recognized as a concern but often more from the perspective of how available funds are distributed or accessed. The funding for the No Child Left Behind Act is based on school district census data. Because of this state's small population, the Superintendent of Public Instruction has petitioned the United States Department of Education for a waiver that would allow the use of free and reduced lunch counts to be used in addition to the school district census as the basis for determining funding levels.

Committee Considerations

Committee members expressed frustration over the contention that the development and implementation of the state accountability plan occurred without input from school districts, teachers, parents, and the Legislative Assembly. The committee also took into account the concern raised by the education interest groups that the groups' suggestions to the Superintendent of Public Instruction and to the Department of Public Instruction staff tend to be met with phraseology such as "it is not permitted" or "the feds will not allow it." However, the committee also understood that certain objections to the No Child Left Behind Act were based on the content of the federal legislation and that the role of the North Dakota Legislative Assembly in those instances would be limited to ensuring the greatest degree of flexibility until such time as the issues are reconsidered at the federal level.

Committee discussion reflected an understanding that suggestions for changes in the state plan have to be based on more than anecdotal evidence. The changes need to demonstrate a sound public policy basis, both from an educational and from a fiscal perspective, and the changes need to be subjected to a thorough and detailed study so that their implications are fully and completely understood.

The committee considered a bill draft patterned on the coalition's recommendation for an advisory commission. The commission would consist of 17 members--two appointed by the North Dakota Council of Educational Leaders, two appointed by the North Dakota Education Association, two appointed by the North Dakota School Boards Association, two appointed by the Superintendent of Public Instruction, one appointed by the North Dakota Indian Affairs Commission, one appointed by the Education Standards and Practices Board, and one appointed by the Governor. The committee also would include six legislators appointed by the Legislative Council.

The bill draft detailed a series of topics that the advisory commission would have to consider. The topics included the nature and scope of assessments permissible under the No Child Left Behind Act in determining the adequate yearly progress of special education students and English language learners and in determining the adequate yearly progress of students in other subgroups, if applicable. Cost, staff training, and communication to the field of known assessment alternatives, the use of instructional level assessments, and the use of exemptions from assessment also would be addressed.

The commission would have to explore the feasibility and desirability of using cohort testing rather than programmatic testing to determine adequate yearly progress and to examine the manner in which student achievement proficiency ratings are established. This would include an examination of the process by which individuals involved in determining the ratings are selected and an examination of alternate means for establishing student achievement proficiency ratings. The public policy with respect to the objectivity of the ratings would be addressed as well.

The efficacy of the binomial distribution formula would be studied and particular focus would be given to its ability to provide a full and complete accounting of the adequate yearly progress of schools and school districts and its ability to segregate, separate, or shelter schools having small or identifiable populations of students. The commission also would be asked to examine from a policy perspective the impacts of increasing and the impacts of decreasing the identification of schools not meeting adequate yearly progress.

Other issues for the commission's study would include student transfers, teacher availability throughout the state, and the creation of a valid and reliable cost reporting system that would allow for accurate longitudinal comparisons and for comparisons by and among schools and school districts. The Legislative Council would provide staff services to the commission and commission members who are also members of the Legislative Assembly would be entitled to receive per diem compensation and reimbursement for travel and other expenses incurred in the performance of official duties.

The advisory commission would be treated as an interim committee, except that it would be directed to report its findings and recommendations, together with any appropriate legislation to a joint meeting of the Senate and House Education Committees in January of each odd-numbered year.

Originally, the bill draft called for the expiration of the commission at the conclusion of its report in January 2007, but the committee removed the expiration date. The committee determined that if the need for this commission waned in the future, the statutes could be repealed at that time.

The bill draft, as first presented to the committee, also included the removal of dated statutory language governing the activity of the current interim No Child Left Behind Committee. The committee concluded the interim committee should likewise be carried forward through the 2005-06 interim.

The committee had two principal concerns about the bill draft. The first concern was that at 17 members, the group would be unwieldy. Consequently, the committee amended the bill draft to trim the commission to 13 by eliminating one representative from each of the three interest groups and from the Department of Public Instruction. An argument was made that even at 13 members, the commission's size would still negatively impact its effectiveness.

The second concern had to do with the purpose of the commission and what it would achieve. Even though it would be assembled for the purpose of providing a voice that some believed did not and does not exist, it was pointed out that the commission would still not be representative of all those who should be heard. The North Dakota Council of Educational Leaders does not include every principal and superintendent in the state and the North Dakota Education Association does not include every teacher in the state. The commission would have no individuals representing taxpayers and no individuals representing parents. Most members of the commission would not be elected and therefore would have no accountability to and no responsibility for taxpayer concerns. The commission was termed a consensus group that would bring clout into the legislative session, limit debate on the issues, and ultimately limit the constitutional process.

Because some of the concerns and suggestions raised by the coalition could be addressed only at the federal level, the committee considered a resolution draft that would have urged Congress to amend the No Child Left Behind Act for the purpose of standardizing the subgroups on a regional or a national basis, providing greater flexibility in the determination of high school graduation rates and recognizing general educational development diplomas and alternative high school programs in those rates, and permitting special education teachers to be considered highly qualified when they teach core subjects to students with disabilities in collaboration with a highly qualified classroom teacher. The resolution draft also would have urged Congress to recognize that the current levels of Title I funding are insufficient to bring low-performing students to the levels of proficiency envisioned by the No Child Left Behind Act of 2001 and therefore the Act should be adequately funded. The committee made an effort to amend the body of the resolution draft but after some consideration determined that a concurrent resolution urging Congressional action was realistically not apt to effect any desired changes.

The committee also considered a bill draft relating to truancy. The bill draft came as a response to the NoChild Left Behind Act, which holds schools and teachers accountable for the education of students but does not place a responsibility on the parents or the students themselves. The bill draft provided that if a student is not in attendance and if that student had not been excused, the teacher would be required to notify the administrator of the school. The administrator would in turn initiate an investigation into the cause of the absence and if the administrator had reason to believe the person having responsibility for the child had failed to ensure the child's attendance, the administrator would be required to refer the matter to the state's attorney. Any person who failed to ensure a child's attendance would be guilty of an infraction for a first offense and would be guilty of a Class B misdemeanor for a second or subsequent offense.

Parents would be subject to a maximum fine of $500 for a first offense and for a second offense parents would be subject to either a maximum fine of $1000, a maximum incarceration of 30 days, or both. Student responsibility for attendance would be achieved through a provision that permits the director of the Department of Transportation to cancel the driver's license of any student under age 16 upon notification by the administrator of the student's school that the student was in violation of the compulsory attendance laws of this state or of the attendance policies of the school or school district.

Although the committee did not examine student attendance rates and the prevalent degree of truancy, it concluded that student attendance was a necessary component of learning and needed to be encouraged.

Recommendations

The committee recommends House Bill No. 1038 to create an advisory commission on the No Child Left Behind Act. The commission would operate under the Legislative Council rules of procedure for interim committees, complete with meeting notices, agendas, and opportunities for public testimony. The committee recommends Senate Bill No. 2042 to penalize parents who fail to ensure their children's attendance and to cancel the driver's license of a truant student under age 16.

ESTIMATED COSTS OF THE NO CHILD LEFT BEHIND ACT - REPORT BY SUPERINTENDENT OF PUBLIC INSTRUCTION

After receiving information from several other states regarding the estimated costs of the No Child Left Behind Act, the committee recognized that before accurate information could be gathered and presented, a framework would have to be constructed and agreement would have to be reached as to what constitutes the direct and indirect costs of the Act. The Superintendent of Public Instruction pointed out the monumental natureof this project and further pointed out that a valid and reliable result would require the effort of every school district in the state. Creating such a framework and reporting system was therefore included by the committee as one of the duties to be undertaken by the proposed advisory commission on the No Child Left Behind Act.