Policing state testing under no child left behind: Encouraging students with disabilities to blow the whistle on unscrupulous educators

Southern California Law Review

Volumn 80, Issue 6, 2007, Pages 1433-1488

  Herrera, Richard C ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 36749052212     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. Margaret Spellings, Sec'y of Educ., U.S. Dep't of Educ., Remarks at the Microsoft Women's Conference (Jan. 12, 2006) (transcript available at http.//www.ed.gov/news/speeches/2006/01/01122006.html).
2. See id.
3. See infra Part III.
4. See infra notes 67-74 and accompanying text.
5. No Child Left Behind Act of 2001, 20 U.S.C.A. §§ 6301-7941 (Westlaw through May 2007 legislation) [hereinafter NCLB]. See also CTR. ON EDUC. POLICY, FROM THE CAPITAL TO THE CLASSROOM: YEAR 4 OF THE NO CHILD LEFT BEHIND ACT 10 (2006), available at http://www.cep-dc.org/index.cfm?fuseaction=Page. viewPage&pageId=495&parented=481 [hereinafter YEAR 4 OF THE No CHILD LEFT BEHIND ACT] (noting one educator's opinion that NCLB attempts to make good workers out of teachers by using fear, threats, and scare tactics).
6. See 20 U.S.C.A. §§ 6301, 6311(b)(2)(F).
7. See id. § 6316.
8. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 56-57 (finding that about 16% (14121) of schools and 20% (2347) of school districts failed to make adequate yearly progress based on 2004-2005 test results).
9. See also Press Release, Ctr. on Educ. Policy, New Report on No Child Left Behind Offers First-Ever Analysis of Implementation Efforts at Federal, State & Local Levels, (Jan. 26, 2004), available at http://www.cep-dc.org/pubs/nclby2/nclb_press_26jan2004/css/nclb_press_26jan2004. htm.
10. See infra notes 67-74 and accompanying text.
11. See infra Part V.
12. CTR. ON EDUC. POLICY, FROM THE CAPITAL TO THE CLASSROOM: YEAR 3 OF THE NO CHILD LEFT BEHIND ACT 91 (2005) [hereinafter YEAR 3 OF THE NO CHILD LEFT BEHIND ACT] ("Some asserted that many special education students are generally unable to reach proficiency 'by definition,' because if they were able to reach grade or proficient level they would no longer require special education services.").
13. See infra Part II.B.1 (noting that the U.S. Department of Education allows states to assess students with disabilities using alternate assessments, but places limits on the number of proficient scores on such assessments that can be counted toward adequate yearly progress).
14. 20 U.S.C.A. § 6311(b)(1)(B) (Westlaw through May 2007 legislation).
15. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67;
16. YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 91. In its report the Center on Education Policy ("CEP") describes a middle school in suburban Michigan that is in restructuring because its students with disabilities have failed to make adequate yearly progress.
17. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67, "Last year, district officials estimated that if only two more special education students had passed state tests, the school would have made [adequate yearly progress]. Teachers [in the district] complain that Michigan's state achievement test is intimidating and discouraging to special education students" and "has no value to them."
18. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67-68.
19. See infra Part II.B.1.
20. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67; Parti Ralabate, Senior Professional Associate for Special Needs, National Education Association (NEA), Statement to the Aspen Institute's Commission on No Child Left Behind (Aug. 2, 2006) [hereinafter Statement of Parti Ralabate], available at http://www.nea.org/lac/esea/080206testi.html.
21. See sources cited infra notes 137-47;
22. YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 91.
23. See infra note 92;
24. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 65 (noting factors that may make it more difficult for schools and districts to demonstrate adequate yearly progress in the future). In addition to rising adequate yearly progress targets, the CEP reported that in NCLB's fourth year, some states had just started to test children in all grades three through eight and once in high school.
25. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 65. According to the CEP, "more tested grades will mean that student subgroups will be large enough to count for [adequate yearly progress] at individual schools, and some subgroups may not meet state targets."
26. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 65.
27. No Child Left Behind Act, Pub. L. No. 107-110 (codified as 20 U.S.C.A. §§ 6301-7941 (Westlaw through May 2007 legislation)).
28. Note, No Child Left Behind and the Political Safeguards of Federalism, 119 HARV. L. REV. 885, 887 (2006).
29. "Title I established an annual block grant to state educational agencies (SEAs) in return for a commitment to provide programs benefiting educationally disadvantaged students." Sarah D. Greenberger, Comment, Enforceable Rights, No Child Left Behind, and Political Patriotism: A Case for Open-Minded Section 1983 Jurisprudence, 153 U. PA. L. REV. 1011, 1016 (2005). Numerous reasons have been offered for the failure of title I to achieve educational equality, however, scholars and advocates generally agree that the lack of evaluation and enforcement made it difficult for title I to succeed.
30. See Peter Zamora, Note, In Recognition of the Special Educational Needs of Low-Income Families?: Ideological Discord and Its Effects Upon Title I of the Elementary and Secondary Education Acts of 1965 and 2001,10 GEO. J. ON POVERTY L. & POL'Y 413, 424 (2003).
31. See Linda Darling-Hammond, From "Separate but Equal" to "No Child Left Behind": The Collision of New Standards and Old Inequalities, in MANY CHILDREN LEFT BEHIND: HOW THE NO CHILD LEFT BEHIND ACT IS DAMAGING OUR CHILDREN AND OUR SCHOOLS 3, 3 (Deborah Meier & George Woods eds., 2004) ("Many civil rights advocates initially hailed the . . . No Child Left Behind [Act] as a step forward in the long battle to improve education for those children traditionally left behind in American schools-in particular, students of color and students living in poverty, new English learners, and students with disabilities.").
32. 20 U.S.C.A. § 6311. "NCLB requires [the U.S. Department of Education] to conduct a peer review of each state's standards and assessments to determine whether they meet the requirements of the law." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 81.
33. 20 U.S.C.A. § 6311(b)(1)(A). Content standards must "[s]pecify what all students are expected to know and be able to do in reading and mathematics," "encourage the teaching of advanced skills," and "[b]e grade specific." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 82. Achievement standards must "[b]e aligned with the content standards, and include at least two levels of achievement (proficient and advanced) that reflect mastery of the content standards and a third level of achievement (basic) that provides information about the students who are working toward mastering the standards."
34. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 82.
35. 20 U.S.C.A. § 6311(b)(3)(C)(ii). See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 82 (listing requirements that assessments must satisfy in order to pass peer review). 26. 20 U.S.C.A. § 6311(b)(2)(F).
36. Id. § 6311(b)(2)(1)(i).
37. Determining [adequate yearly progress] under NCLB is largely based on a status model, which takes a snapshot of student proficiency at one point in time and compares that with a fixed target. Progress is defined by the percentage of students achieving at the proficient level [on state assessment tests] for [a] particular year, and the school is evaluated based on whether the student group met or did not meet that goal. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 79 (emphasis in original).
38. 20 U.S.C.A. § 6311(b)(2)(A)(iii). See also infra Part U.C.
39. See U.S. DEP'T OF EDUC, A GUIDE TO EDUCATION AND NO CHILD LEFT BEHIND 22 (2004), available at http://www.ed.gov/nclb/overview/intro/guide/ guide.pdf.
40. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 44 (noting that each state sets its own definition of proficient and uses its own test which makes comparison of student achievement between states difficult).
41. 20 U.S.C.A. § 6311(b)(2)(E). "In most cases the latter value will be the higher one and will define the starting point." Robert L. Linn, Scientific Evidence and Inference in Educational Policy and Practice: Implications for Evaluating Adequate Yearly Progress, in MEASUREMENT AND RESEARCH IN THE ACCOUNTABILITY ERA 21,23 (Carol Anne Dwyer ed., 2005).
42. 20 U.S.C.A. § 6311(b)(2)(C)(v). States, their local educational agencies, and schools are not required to disaggregate data where the number of students in a category is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student. Id. § 6311(b)(2)(C)(v).
43. Id. § 6311(b)(2)(G)(iii).
44. Id. § 6311(b)(2)(I)(i). Schools that otherwise would have failed to make adequate yearly progress because of a single subgroup, shall nevertheless be considered to have made adequate yearly progress if the percentage of students in that group "who did not meet or exceed the proficient level of academic achievement on the State assessments ... for that year decreased by 10% of that percentage from the preceding school year and that group made progress on one or more of the [State's other] academic indicators." Id. Some states use confidence intervals in conjunction with NCLB's Safe Harbor.
45. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 70 (noting that "[t]he introduction of a confidence interval in these cases can relax the 10% reduction rule substantially," making it "possible for schools or subgroups to make [adequate yearly progress] without meeting state targets and without making much improvement over the previous year").
46. For more on confidence intervals see infra note 110 and YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 68-73.
47. 20 U.S.C.A. § 6311(b)(2)(I). In 2004, the U.S. Department of Education began "allowing states to average their participation rates over two or three years, so that a 94% participation rate one year could be balanced by a 96% participation rate the following or previous year." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 75.
48. See U.S. Dep't of Educ, The Facts About.., Measuring Progress (Archived Information), at http://www.ed.gov/nclb/accountability/ayp/ testing.html (last visited Sept. 16, 2007) ("Under [NCLB], every state must set clear and high standards for what students in each grade should know and be able to do in the core academic subjects of reading, math and science. States will measure each student's progress toward those standards with tests aligned with those higher standards.").
49. See id.
50. 20 U.S.C.A § 631 1(b)(3)(C)(ii)-(iii).
51. Id. § 6311(b)(3)(C)(v)(I).
52. NCLB requires states to provide students with disabilities with appropriate accommodations on state assessment tests. See 34 C.F.R. §200.6 (a)(1) (2007). In determining what accommodations are necessary, states must consider the unique needs of the students. See id. Examples of appropriate accommodations include increased time or the use of assistive technology. U.S. Dep't of Educ, Fact Sheet: No Child Left Behind Provision Gives Schools New Flexibility and Ensures Accountability For Students With Disabilities, at http://www.ed.gov/nclb/freedom/local/specedfactsheet.pdf [hereinafter NCLB Fact Sheet] (last visited Sept. 16, 2007).
53. NCLB Fact Sheet, supra note 39.
54. 34 C.F.R. §§ 200.1(d), 200.6(a)(2)(ii)(B) (2007). See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 86 (noting that the regulation "allow[s] states to give students with significant cognitive disabilities an alternate assessment geared to their learning level (alternate standards) rather than their grade-level (grade-level standards)").
55. 34 C.F.R. § 200.13(c)(2)(i) (2007). In other words, "their scores [cannot] account for more than 1% of a state or district's proficient scores when determining [adequate yearly progress]." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 66. According to the Center on Education Policy, "almost all states have now adopted this policy." Id. at 66. "The district or state is still free to test as many students with disabilities under alternate standards as it wants, but any proficient scores above the 1% cap cannot be counted for [adequate yearly progress] purposes." Id.
56. NCLB Fact Sheet, supra note 39.
57. Press Release, U.S. Dep't of Educ, Secretary Spellings Announces New Regulations to More Accurately Assess Students With Disabilities (Apr. 4, 2007), available at http://www.ed.gov/ print/news/pressreleases/2007/04/ 04042007.html [hereinafter Press Release: New Regulations],
58. 34 C.F.R. § 200.1(e)(1) (2007).
59. Press Release: New Regulations, supra note 44.
60. Students who can make significant progress but may not reach grade-level achievement within the same time frame are sometimes referred to as "gap kids." YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 92.
61. U.S. Dep't of Educ, Assessing Students With Disabilities: IDEA and NCLB Working Together, at http://www.ed.gov/admins/lead/speced/toolkit/idea- nclb.doc (last visited Sept. 17, 2007).
62. 34 C.F.R. § 200.13(c)(2)(ii) (2007). "Now, an additional 2% of the proficient scores of all students in the testing pool can come from students with disabilities assessed against 'modified standards,' on top of the 1% assessed against 'alternate standards' allowed by the 2003 policy change [referred to in Section II.B. 1. of this Note]." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 66.
63. 20 U.S.C § 6316(b)(1)(A) (Westlaw through May 2007 legislation).
64. Id. § 6316(b)(1)(E)(i) & (b)(3)(A).
65. Id. § 6316(b)(5).
66. Id. § 6316(b)(7)(C)(iv)(I).
67. Id. § 6316(b)(8).
68. Id. § 6317(b).
69. Id.§ 6317(c)(2).
70. To illustrate this point, a Houston, Texas school district spent more than $7 million a year on performance bonuses that were primarily based on test scores under Texas's system of accountability. Lisa Snell, How Schools Cheat: From Underreporting Violence to Inflating Graduation Rates to Fudging Testscores [sic], Educators Are Lying to the American People, REASON FOUNDATION, (June 2005), at http://www.reason.com/news/show/36161.html. The bonuses included up to $800 for teachers, $5000 for principals, and $20,000 for higher-level administrators. Id.
71. The Austin, Texas, school district was indicted for criminal tampering after it was uncovered that school officials excluded low performing students from standardized testing in order to raise the overall test scores. Nat'l Ctr. for Policy Analysis: Idea House, Tests Drive Cheaters to Cheat, at http://www.ncpa.org/pi/edu/pd071300f.html (last visited Sept. 17, 2007). In 1999, prior to NCLB, it was uncovered that the Florida State Department of Education had been "quietly excluding the test scores of thousands of children ... in special education programs."
72. Diane Rado, Testing Policy Raises Questions: Florida Excludes Special Education Students and Others When Evaluating Schools, Thus Inflating Test Scores, ST. PETERSBURG TIMES, May 23, 1999, at IB. The students were taking the tests but officials were not counting or making public the results of their work. Id.
73. Joshua Benton & Holly K. Hacker, Celebrated School Accused of Cheating Exclusive: TAKS Results Too Good to Be True at Houston Elementarles, DALLAS MORNING NEWS, Dec. 31,2004, at IA.
74. Joshua Benton, A Little Help on TAKS Exclusive: At W-H, Students Say Teachers Gave Answers, DALLAS MORNING NEWS, NOV. 14, 2004, at 1A.
75. Staci Hupp, Amid Testing Stress, Some Teachers Cheat; Experts Chalk Up Cases of Scorefixing to Growing Stakes of the State Exams, INDIANAPOLIS STAR, Jan. 2, 2005, at IA.
76. Benton & Hacker, supra note 58.
77. Id.
78. Benton, supra note 59.
79. Id.
80. See Marie Gryphon, Education Law Encourages Fuzzy Math, NEWARK STAR-LEDGER, Feb. 18, 2005, available at http://www.cato.org/pub_display.php?pub_id=3694& print=Y ("Recently the state of North Carolina hired a consultant to learn whether its teachers and administrators are cheating on high-stakes tests ,..."); Hupp, supra note 60.
81. Gregory J. Cizek, Cheating to the Test, EDUCATION NEXT (Spring 2001), available at http://www.hoover.org/ publications/ednext/3390971.html.
82. Gryphon, supra note 65.
83. Ajuah Helton, Allegations of Test Improprieties Cropping Up Across the Country: With High-stakes Tests, Are Teachers and Administrators Under Pressure to Cheat?, PHILADELPHIA PUBLIC SCHOOL NOTEBOOK (Spring 2003), available at http://www.thenotebook.org/ editions/2003/spring/cheating.htm.
84. Jim Brown, Cheating Scandal Involved Teachers and Administrators, Says Houston District, AGAPE PRESS NEWS, May 12, 2005, available at http://headlines.agapepress.org/archive/5/afa/ 122005d.asp.
85. Hupp, supra note 60.
86. Id.
87. Id.
88. Id.
89. Helton, supra note 68.
90. Hupp, supra note 60 (quoting an Arizona State University education psychology professor who studies the manipulation of test score data: "Some people are bending the rules... I think it's mainly teachers, principals, and superintendents, because of accountability and the need to show the public you're doing a good job"). See also Patti Ghezzi, Who's Winking and Nodding?, ATLANTA JOURNAL- CONSTITUTION, Apr. 18, 2006, available at http://www.ajc.com/ blogs/content/sharedblogs/ajc/education/entries/2006/04/18/whos_winking_an.html.
91. Benton, supra note 59.
92. Id.
93. See supra notes 61-64 and accompanying text (discussing results of the Dallas Morning News' analysis of test scores from 7,700 Texas public schools).
94. See Megan Tench, Allegations of Cheating Hint At Stress Teachers Feel, BOSTON GLOBE, Dec. 27, 2003, at B1 (noting that educators claim that "cheating is an extreme and isolated response" and that "[w]hen it comes to the pressure of statewide exams, 'the vast majority of teachers respond in ways that are ethical and responsible'").
95. Brian A. Jacob & Steven D. Levitt, Rotten Apples: An Investigation of the Prevalence and Predictors of Teacher Cheating, 118 Q.J. OF ECON. 843, 846 (2003) (detecting cheating in approximately 4 to 5 % of the classes in the research sample).
96. Id. at 845. It is important to note that prior to 1996, Chicago's public schools did not operate under an accountability system. Id. at 867. Beginning in 1996, however, a system of accountability was implemented. Id. This system involved putting schools '"on probation' if less than 15% of students scored at or above national norms" on the state's assessment test in reading. Id. Scores on the state's assessment test in math were not used for the purpose of determining probation status. Id. Schools on probation that failed to make sufficient improvement were subject to reconstitution. Id. These serve as additional reasons why we should expect the prevalence of cheating to be even higher under the accountability systems mandated by NCLB.
97. Id. at 846. According to the researchers, their estimate most likely understated the true prevalence of cheating because their study focused "only on the most egregious type of cheating, where teachers systematically alter student test forms." Id. Thus, their mathematical formula for detecting cheating is unlikely to detect more subtle forms of cheating, such as providing extra time to students. Id. Furthermore, even when student test forms are systematically altered, the results of the study suggest that the formula will only detect extreme instances of such misconduct, meaning that instances where teachers target a small number of students in a given classroom by changing their answers to a small number of test questions are likely to go undetected. See id. at 860-61.
98. Id. at 846.
99. Id. at 847.
100. Id. If this is true we should expect the prevalence of cheating to be higher under an accountability system that requires the scores of all students to be included in the official calculations. If the scores of all students, including those with disabilities, were included in the official calculations the benefits of cheating would presumably be higher.
101. See supra note 57 and accompanying text (noting that prior to NCLB, states were excluding low-performing students, like students with disabilities, from testing).
102. Jacob & Levitt, supra note 80, at 870.
103. See supra note 57'.
104. If the benefits of cheating decrease as the number of low performers that can be excluded from official calculations increases, then the benefits of cheating should increase as the number of low performers that can be excluded from official calculations decreases.
105. Helton, supra note 68.
106. Id.
107. See Jacob & Levitt, supra note 80, at 847. Under NCLB, states' annual measurable objectives (intermediate goals) must "increase in equal increments over the period covered by the State's timeline[,]... provide for the first increase to occur in not more than 2 years[,]... and provide for each following increase to occur in not more than 3 years." 20 U.S.C.A. § 6311(b)(2)(H) (Westlaw through May 2007 legislation). The Department of Education "has interpreted this provision in a way that allows states to vary the number of years between constant increments in the percentage of students at the proficient level or above." Linn, supra note 30, at 24. Thus, it is more common for states to adopt a pattern of adequate yearly progress goals in which increases in the percentage of students at the proficient level or above occur every three years until 2010, after which increases are required every year. Id. This allows states to postpone until later years gains that have to be realized every year. Id. This practice may rum out to be costly. Research has shown that gains in student performance on state assessment tests tend to be greatest in the first few years after they have been introduced as part of an accountability system and then taper off in later years. Id. If students are likely to make less progress at a time when states and school districts need gains in student achievement to increase at a rather rapid rate, making adequate yearly progress will become increasingly difficult.
108. Id. See also supra text accompanying note 18. Thus, it appears that cheating will become an even more appealing option for educators in the years to come.
109. HEINRICH MINTROP, SCHOOLS ON PROBATION: HOW ACCOUNTABILITY WORKS (AND DOESN'T WORK) 15 (2004) (citations omitted).
110. See Statement of Patti Ralabate, supra note 16.
111. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 11;
112. CHAPTER 4 - A SURVEY OF SOUTH DAKOTA SCHOOL SUPERINTENDENTS (2004), available at http://www.state.sd.us/ legislativeaudit/NCLB/Chapter%204.pdf [hereinafter SOUTH DAKOTA SURVEY];
113. SEN. COMM. ON EDUC. AND MILITARY AFFAIRS, NO CHILD LEFT BEHIND (NCLB) SURVEY TO HAWAII SCHOOL PRINCIPALS, available at http://www.capitol.hawaii.gov/sitel/senate/members/ newsletters/2_NCLB SurveyAnalysis.pdf;
114. OFFICE OF THE LEGISLATIVE AUDITOR, STATE OF MINN., NO CHILD LEFT BEHIND: MAJOR FINDINGS, (2004), available at http://www.auditor.leg.state.mn.us/ped/ pedrep/0404a.pdf [hereinafter MINNESOTA REPORT SUMMARY].
115. See infra text accompanying note 102.
116. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 11 (reporting survey results, which indicate that "[s]everal states and districts questioned their ability to bring 100% of their students to the proficient level of achievement by 2014").
117. See NAT'L CONFERENCE OF STATE LEGISLATURES TASK FORCE ON NO CHILD LEFT BEHIND, REPORT: EXECUTIVE SUMMARY, SUMMARY OF CH. 6: THE COST OF CLOSING THE ACHIEVEMENT GAP: COMPLIANCE VS. PROFICIENCY (Feb. 23, 2005), available at http://www.ncsl.org/programs/press/2005/ NCLB_exec_Summary.htm [hereinafter NCSL Report].
118. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 12 (reporting that in 2004-05, 37% of the states surveyed reported that the adequacy of state funds to carry out duties under NCLB presented a serious or moderate challenge).
119. See NCSL Report, supra note 97, at SUMMARY OF CH. 3: AYP: STUDENTS WITH DISABILITIES AND LIMITED ENGLISH PROFICIENCY; YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 11 ("[C]ase study interviewees ... felt the 100% goal was unrealistic, especially for students with disabilities.").
120. SOUTH DAKOTA SURVEY, supra note 95 (emphasis added).
121. Id.
122. See Pedro A. Noguera, Standards for What? Accountability for Whom? Rethinking Standards-Based Reform in Public Education, in HOLDING ACCOUNTABILITY ACCOUNTABLE: WHAT OUGHT TO MATTER IN PUBLIC EDUCATION 66, 73 (Kenneth A. Sirotnik ed., 2004) (noting that "[t]he students who are least likely to achieve in school are the students from the poorest families-the kids who are least likely to have educated parents, stable housing, or adequate health care" and arguing that "[i]f we want to ensure that all students have the opportunity to learn we must ensure that their basic needs are met");
123. Alain Jehlen, NCLB: The Sequel, NEA TODAY, Feb. 2007, at 31;
124. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 61-63 (noting that "[t]he effects of NCLB are concentrated in urban districts" and suggesting that one possible explanation for this is that urban districts generally have more low-income students);
125. Hupp, supra note 60;
126. MINTROP, supra note 93 at 24 ("In the view of a majority of the [teachers interviewed], the challenging living circumstances of the students-poverty, unstable families, drugs, high mobility, and the like-were dominant explanations for the school's decline and made it difficult for them to raise student performance.")
127. Darling-Hammond, supra note 22, at 10
128. (citing Robert L. Linn, Accountability: Responsibility and Reasonable Expectations, EDUC. RESEARCHER, Oct. 2003, at 3, 3-13).
129. This is because schools with a lower proficiency starting point need to make much larger gains than schools with a higher proficiency starting point. Thus, a school with a lower proficiency starting point could make much more progress than a school with a higher proficiency starting point, yet still be penalized for not making adequate yearly progress while the school with a higher proficiency starting point avoids sanctions even though its gains are modest at best. In addition, a school that began with a large majority of its students at or above the proficient level could theoretically remain comfortably above the state adequate yearly progress goal line for several years despite a "steady erosion of the percentage of students at the proficient level or above." Linn, supra note 30, at 28-29.
130. See Nat'l Educ. Assoc, Washington Shortchanges Children and Public Schools Across the Nation, available at http://www.nea.org/lawsuit/ statefact.html?mode=print [hereinafter NEA];
131. Wendy Lecker, TAe Promises and Challenges of the No Child Left Behind Act, ACCESS (online database) (Sept. 2005), available at http://www.schoolfunding.info/federal/NCLB/nclb_brief.php3;
132. Congress Cuts NCLB By More Than $1 Billion: Historic Reduction Damages Education Funding, ACCESS (online database) (Jan. 2006), available at http://www.schoolfunding.info/news/federal/1-4- 06nclbbudgetcuts.php3 [hereinafter Congress Cuts NCLB];
133. Diana Jean Schemo, The President's Budget: Education; A Leaner Year Is Proposed for Schools, N.Y. TIMES, Feb. 7, 2006, at A16 (noting that "[although President Bush called in the State of the Union address for a major new commitment to improving math and science instruction, his budget for the [2006 fiscal year] would cut the Education Department's discretionary budget to $54.41 billion from $55.92 billion in the current fiscal year" resulting in a reduction in the title I allotments for 29 states);
134. infra note 195 and accompanying text.
135. "IDEA was envisioned as a federal-state partnership in which Congress would provide 40 percent of the cost and the state would pay 60 percent... [yet, Congress] has never increased funding to the 40 percent level." Ronald D. Wenkart, An Essay: Unfunded Federal Mandates: The No Child Left Behind Act and The Individuals With Disabilities Education Act, 202 EDUC. LAW REP. 461, 462 (2005). This makes it especially difficult for schools to adequately address the educational needs of its special education population since "[t]he average cost of educating a disabled student is twice that of educating a student who is not disabled, and the number of disabled students continues to increase, due to improvements in medical treatment, new technology for the disabled, and increased parental awareness of programs for the disabled." Id.
136. Tench, supra note 79.
137. See 20 U.S.C.A. § 6311 (b)(2)(I)(i) (Westlaw through May 2007 legislation).
138. See Darling-Hammond, supra note 22, at 19 (noting that as lower scoring students disappear, test scores go up and describing the impact that the lowest performing student can have on a school's average score).
139. Sam Dillon, Diverse Schools More Likely to Be Labeled as Failing, Study Says, N.Y. TIMES, Dec. 25, 2003, at Al 9.
140. See also Darling-Hammond, supra note 22, at 5;
141. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 61-63 (reporting that urban school districts and schools have experienced greater difficulty in meeting adequate yearly progress goals than their suburban and rural counterparts).
142. Stan Karp, NCLB's Selective Vision of Equality: Some Gaps Count More Than Others, in MANY CHILDREN LEFT BEHIND: HOW THE NO CHILD LEFT BEHIND ACT IS DAMAGING OUR CHILDREN AND OUR SCHOOLS 53, 56 (Deborah Meier & George Wood eds., 2004). Recognizing this, the U.S. Department of Education has allowed most states to use confidence intervals.
143. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 68. A confidence interval is a statistical technique, "somewhat like a margin of error in an opinion poll," which, when applied, "creates a window of plus or minus a few points around the percentage of students in a school or district who score at the proficient level on state tests." Id. If the state's adequate yearly progress target falls within that window, the school or subgroup is counted as making adequate yearly progress. Id.
144. Cizek, supra note 66.
145. MLNTROP, supra note 93, at 15.
146. See Jehlen, supra note 101, at 32 (stating that according to a 27-member committee charged with planning the National Education Association's ("NEA's") efforts to change and improve the No Child Left Behind law, NEA members across the country stated that "[m]easuring school success exclusively by test scores narrows the curriculum by making schools teach to the test");
147. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 5 (reporting that a "bipartisan task force of the National Conference of State Legislatures made 43 recommendations for revising NCLB," one of which included "removing the one-size-fits-all method of measuring student performance");
148. MINTROP, supra note 93, at 37 (noting that many teachers surveyed felt that "[p]reparing students for a productive life was [a] teacher['s] primary mission [and] a goal that... could not be captured adequately by test scores"). Mintrop surveyed a large sample of public school teachers in Kentucky and Maryland. While the study was conducted prior to NCLB's enactment, the assessment tests that the teachers were asked to comment on are similar to those currently employed by both states under NCLB.
149. See id. at 6 ("At the time the study was conducted between 1997 and 2000, both states had features of elaborate accountability systems in common: complex student assessments, performance categories for schools, rewards and sanctions, school improvement planning and monitoring."). For a more detailed description of the school accountability systems in place in Maryland and Kentucky at the time of Mintrop's study,
150. see MINTROP, supra note 93, at 6-11.
151. Kenneth A. Sirotnik, Introduction: Critical Concerns About Accountability Concepts and Practices, in HOLDING ACCOUNTABILITY ACCOUNTABLE: WHAT OUGHT TO MATTER IN PUBLIC EDUCATION 1,5 (Kenneth A. Sirotnik ed., 2004).
152. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 10 (reporting that several survey and case study participants stated that among NCLB's negative effects are "excessive time required for testing" and a "narrowing of curriculum content and skills").
153. Noguera, supra note 101, at 72. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 10 (reporting that several survey and case study participants stated that some of the minuses of NCLB's testing provisions include "a loss of time for subjects like music and social studies and creative classroom activities").
154. See Much Pain, But No Gain, NEATODAY, Jan. 2006, at 10 (reporting that the latest and most systematic study on whether high-stakes testing actually works found that there was "no consistent link between [increased] pressure and scores on the National Assessment of Educational Progress" and that "high-stakes testing may be increasing the dropout rate");
155. NCLB: A Hindrance?, NEATODAY, Jan. 2006, at 11 (noting that since NCLB's enactment, "scores from the 2005 National Assessment of Educational Progress show that American fourth-graders are reading at about the same level as they did in 1992" and "while math scores had been steadily improving," recently, progress has slowed), According to Jack Jennings, president of the Washington-based Center on Education Policy, "[t]here's a question as to whether No Child [Left Behind] is slowing down our progress." Id.
156. In a speech given by U.S. Secretary of Education Margaret Spellings, the Secretary opened with the following line: "In God we trust, all others bring data." See Spellings, supra note 1.
157. Cizek, supra note 66 (quoting Alfie Kohn, a prominent critic of testing).
158. This could explain why Jacob and Levitt found that "[c]lassrooms that tested poorly last year are much more likely to cheat." Jacob & Levitt, supra note 80, at 870. Instead of fixing the problem, districts may find it easier to manipulate the system.
159. YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at vi (reporting that educators at the state and local levels have stated that states and local school districts do not have the financial capacity to help low performing schools and students).
160. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 17 ("In both 2004 and 2005, nearly two-thirds of states [surveyed] reported that funds have not been sufficient to provide technical assistance to schools in need of improvement.").
161. See generally Wenkart, supra note 105.
162. See Brian Stecher, Laura Hamilton & Scott Naftel, Introduction to First-Year Findings from the Implementing Standards-Based Accountability (ISBA) Project 22 (RAND Education, Working Paper No. WR-255-EDU, Apr. 2005), available at https://www.rand.org/pubs/ working_papers/2005/ RAND_WR255.pdf (reporting that the State of Georgia had to completely revise the curriculum standards it had developed pursuant to its NCLB state accountability plan in response to an external audit conducted by Phi Delta Kappa that found that the state's Quality Core Curriculum "lacked depth, covered too many topics, and was not aligned with national standards").
163. See generally 20 U.S.C.A. § 6311 (Westlaw through May 2007 legislation).
164. Ghezzi, supra note 75.
165. See also 20 U.S.C.A. § 6311 ;
166. Helton, supra note 68.
167. See Darling-Hammond, supra note 22, at 3.
168. 20 U.S.C.A. § 6311(b)(3)(C)(ix)(I) (mandating that state assessment tests provide for the participation of all students). See also id. § 631 1(b)(2)(I)(ii) (stating that schools and districts must test at least 95% of the special education student population in order to make adequate yearly progress).
169. See id. § 6311(b)(2)(I)(ii).
170. See Jacob & Levitt, supra note 80, at 870. Forcing states to include the scores of students with disabilities increases the benefits of cheating.
171. See id. at 870. Thus, educators engage in various types of conduct-both legal and illegal-designed to artificially inflate the scores of students with disabilities.
172. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 66 (noting that because NCLB legally allows states to determine the minimum subgroup size, "[m]any states have raised the minimum subgroup size, so that more schools can exclude the subgroup of students with disabilities from school-level [adequate yearly progress] calculations");
173. Tench, supra note 79 (reporting that school sources at a Massachusetts elementary school said that one of the school's special education teachers illegally helped her students choose correct answers to test questions on the Massachusetts Comprehensive Assessment System exam).
174. See infra notes 134-38 and accompanying text.
175. See infra text accompanying note 133.
176. See infra notes 137-47.
177. See infra notes 139,144-47.
178. See, e.g., YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67.
179. Id. at 36. "In district case studies and in response to open-ended survey questions, state and district officials applauded NCLB's goal of closing achievement gaps because it brought attention to traditionally underserved groups. Many state and district officials, however, called the goal of closing the gap entirely unrealistic for students with disabilities." Id.
180. KEVIN S. MCGREW & JEFFREY EVANS, UNIV. OF MINN., NAT'L CTR. ON EDUC. OUTCOMES, EXPECTATIONS FOR STUDENTS WITH COGNITIVE DISABILITIES: IS THE CUP HALF EMPTY OR HALF FULL? CAN THE CUP FLOW OVER? (NCEO SYNTHESIS REPORT 55), 1, 5, available at http://www.osepideasthatwork.org/toolkit/pdf/ ExpectationsStudentsCogDisabilities.pdf.
181. Id. at 5 (citing Olson, L., Enveloping Expectations, EDUCATION WEEK (QUALITY COUNTS), 2004, at 8, 8-21).
182. Jose Blackorby et al., The Academic Performance of Elementary and Middle School Students With Disabilities, in SEELS: ENGAGEMENT, ACADEMIC, SOCIAL ADJUSTMENT, AND INDEPENDENCE: THE ACHIEVEMENTS OF ELEMENTARY AND MIDDLE SCHOOL STUDENTS WITH DISABILITIES 4-12, available at http://www.seels.net/designdocs/ engagement/04_SEELS_outcomes_C4_8-19-04.pdf.
183. See YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 91;
184. infra note 142 and accompanying text. Since NCLB's passage, the CEP has conducted surveys of state and district officials and performed case studies on school districts in an effort to assess NCLB's impact.
185. See generally YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5.
186. See infra notes 139, 142-45 and accompanying text; YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 91.
187. YEAR 3 OF THE NO CHILD LEFT BEHIND ACT, supra note 11, at 91,
188. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 36-37.
189. See id. at 48 fig.2-B, 49 fig.2-C.
190. See id. According to the CEP's latest report, while many officials believe that the gap between disabled and non-disabled students is narrowing, many admit that the gap remains wide and between disabled and non-disabled students is narrowing, many admit that the gap remains wide and are concerned about whether 100% proficiency by 2014 is a realistic goal for students with disabilities.
191. See id. at 47, 50-51.
192. See id. at 40.
193. See id. at 40, 41 tbl.2-B.
194. See id. at 41 tbl.2-B.
195. See id. at 67;
196. Statement of Patti Ralabate, supra note 16.
197. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67;
198. Statement of Patti Ralabate, supra note 16.
199. See infra notes 150-55.
200. See 20 U.S.C.A. § 1414 (d)(1)(A) (Westlaw through May 2007 legislation).
201. See id. § 1400(d).
202. See id. §1412(a)(16).
203. See discussion supra Part II.B.I.
204. See Cory L. Shindel, Notes and Comments, One Standard Fits All? Defining Achievement Standards For Students With Cognitive Disabilities Within the No Child Left Behind Act's Standardized Framework, 12 J.L. & POL'Y 1025, 1031-32 (2004) (arguing that "in requiring that IEP teams contend with external pressures to minimize school failure under NCLB, the [1%] cap distracts . . . educators from their rightful focus on the needs of individual students [with disabilities]");
205. Statement of Patti Ralabate, supra note 16. According to Ralabate: [The NEA has] created several guides for our members about how to write effective IEPs aligned with content standards. Unfortunately, these tools are not nearly as useful as they should be given the lack of direction to states and local districts about how to design modified and alternate standards that are appropriate to the wide range of students with disabilities and compliant with NCLB.... As a result, students with disabilities are tested in formats that do not allow them to demonstrate their capabilities. Teachers and parents are expressing frustrations with the NCLB assessment system. And, students who are not participating in appropriate assessments are feeling defeated or shortchanged.
206. Id.
207. See supra text accompanying notes 18, 92.
208. See 20 U.S.C.A. § 6311 (Westlaw through May 2007 legislation).
209. See Hupp, supra note 60 ("Punishing cheaters . . . is up to school districts . . . [Indiana] offers no guidance when it comes to disciplining teachers.");
210. Ghezzi, supra note 75 (noting that all test monitors come from within the school system).
211. See Joshua Benton, States to Dissolve W-H School Board: TEA Report Says More Than 20 Educators gave Students TAKS Answers, DALLAS MORNING NEWS, Mar. 22, 2005, at 1A [hereinafter Benton 2];
212. Benton & Hacker, supra note 58;
213. Benton, supra note 59. These sources report the results of full-scale investigations conducted by the Texas Educational Agency and various Texas school districts in response to a series of reports by the Dallas Morning News highlighting suspicious test scores, Punishments for cheating have ranged from professional sanctions to criminal penalties.
214. See Benton 2, supra (reporting on the Texas State Education Commissioner's dissolution of a local school district's board in response to findings of widespread misconduct and on the firing of a Texas superintendent following his indictment on felony document tampering charges);
215. Hupp, supra note 60 (noting that in some states teachers caught cheating can have their licenses revoked).
216. The largest documented occurrence of cheating since NCLB was passed was initially detected by a Texas newspaper's investigation. See discussion supra notes 51-53 and accompanying text.
217. Jacob & Levitt, supra note 80, at 847. The "costs of cheating" signify how difficult it is for educators to cheat. The greater the costs, the less likely educators will cheat.
218. Test monitors have been used before but only following accusations of cheating. See Benton, supra note 59;
219. Helton, supra note 68 (discussing the drawbacks of hiring outside test proctors including the lack of funds).
220. See Helton, supra note 68 (quoting a Texas teacher commenting that, "[i]n no other arena are those who stand to benefit or suffer according to test results in charge of testing").
221. See Cizek, supra note 66.
222. Gryphon, supra note 65 (reporting that in 2005, North Carolina hired a consultant to learn whether its teachers and administrators were cheating); Hupp
223. supra note 60 (noting that in 2005, the State of Indiana hired private consultants to determine whether they had adequate testing safeguards in place and that several other states were scheduled to do the same).
224. See Aimee Edmondson, Exams Test Educator Integrity: Emphasis on Scores Can Lead to Cheating, Survey Finds, COMMERCIAL-APPEAL (Memphis, Tenn.), Sept. 21, 2003, available at http://www. freerepublic.com/focus/f-news/986561/posts.
225. See Helton, supra note 68.
226. Hupp, supra note 60.
227. Helton, supra note 68.
228. Cizek, supra note 66.
229. See Jehlen, supra note 101, at 32 (suggesting that initial testing already consumes too much valuable class time). As one teacher put it, "I have been forced to squander 17 days of class time because of standardized tests."
230. Id.
231. Jacob & Levitt, supra note 80, at 846.
232. See discussion infra Part VIA.
233. Greenberger, supra note 21, at 1013.
234. See also 20 U.S.C.A, § 6311(g) (Westlaw through May 2007 legislation).
235. Greenberger, supra note 21, at 1013 n.15, 1039 (noting that "[f]und termination is a dramatic step that is rarely taken under any Spending Clause program" and stating that fund termination, as a remedy, is rarely used).
236. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67.
237. See Greenberger, supra note 21, at 1038. Unless cheating was occurring at all public elementary and secondary schools in a given state, terminating funding would arguably be out of proportion to the nature of the violation.
238. See id. at 1014.
239. In essence, terminating funding would punish students for educator misconduct. See Jesse H. Choper & John C. Yoo, Who's Afraid of the Eleventh Amendment? The Limited Impact of the Court's Sovereign Immunity Rulings, 106 COLUM. L. REV. 213, 248 (2006) (stating that "such drastic action that could result in denying benefits to the disabled . . . will not help the situation of [that] group[], which [has] already suffered harm at the hand of the state").
240. 34 C.F.R. § 200.13(c)(2)(ii) (2007).
241. In recent years the U.S. Department of Education has allowed certain states to use larger confidence intervals and performance indexes. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 68, 73.
242. See also supra text accompanying note 110 (discussing confidence intervals). Performance indexes "give credit for gains made by schools and districts at achievement levels below proficient, such as having more students score at the 'basic' instead of 'below basic' level compared with the previous year." YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 73.
243. Also, in 2005, "Secretary Spellings announced a pilot program whereby interested and qualified states could submit proposals for developing 'growth models'. . . as an alternate means of determining [adequate yearly progress]."
244. Id. at 78. "These models could enable states to credit schools for the academic growth of individual students even if the percentage at the proficient level falls short of state [adequate yearly progress] goals."
245. Id. at 79. Like the Department's 2% regulation, these measures should make it easier for local educational agencies and schools to make adequate yearly progress. However, in light of evidence suggesting that the benefits of cheating will increase as local educational agencies and schools find it increasingly difficult to make adequate yearly progress as they approach the 2014 deadline, it is unclear whether these measures will reduce the benefits of cheating enough to solve the problem. What is clear is that students with disabilities and their parents cannot afford to wait and see.
246. See infra notes 180-87
247. See infra notes 184-91 and accompanying text (noting that time and money may prevent states from taking advantage of the additional flexibility).
248. See YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 67 (noting that in response to survey questions regarding the perceived helpfulness of the 2% regulation, a "majority of state officials . . . described the students with disabilities policy change as not helpful or only minimally helpful").
249. Id. at 67, 76-77.
250. Id. at 67.
251. Statement of Patti Ralabate, supra note 16 (emphasis added).
252. Id.
253. Id.
254. Id.
255. See id. (recommending additional funding "for development of high quality tests-resources that have been dwindling over the last two years");
256. YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 18 ("The development and implementation of assessments... far exceeds the funds provided by the state and U.S. Department of Education. In addition, the development of alternate assessments will be another burden to the already stretched assessment budget.").
257. But see Press Release: New Regulations, supra note 44 (according to Secretary Spellings, "the U.S. Department of Education will provide $21.1 million in grant funds for technical assistance as states develop new assessments").
258. Wendy Lecker, The Promise and Challenges of the "No Child Left Behind Act, " ACCESS (online database) (Sept. 2005), available at http://www.schoolfunding.info/federal/NCLB/nclb_brief,php3 (noting that many chief state school officers, legislators and school district superintendents assert that NCLB is an unfunded mandate, and that "[i]ronically, NCLB is one of the few federal laws that explicitly prohibits imposition of unfunded mandates"). States have gone so far as to file suits against the U.S. Department of Education challenging NCLB as an unfunded mandate.
259. See Sch. Dist. of Pontiac v. Spellings, No.05-CV-71535-D, WL 3149545 (E.D. Mich. 2005); Connecticut v. Spellings, 453 F. Supp. 2d 459 (D. Conn. 2006);
260. Wenkart, supra note 105, at 461.
261. Joy Farmer, The No Child Left Behind Act: Will It Produce a New Breed of School Financing Litigation?, 38 COLUM. J.L. & SOC. PROBS. 443, 450 (2005) ("Finally, it costs money to implement NCLB's mandates-money that some argue states simply do not have.").
262. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 17;
263. NCSL Report, supra note 97, at Chapter 6 ("In the best case scenario, federal funding marginally covers the costs of complying with the administrative processes of the law.").
264. Katherine Lu, Cost Study Finds NCLB Underfunded in Virginia, ACCESS (online database) (Sept. 2005), available at http://www.schoolfunding.info/news/federal/9-23-05VAnclbcoststudies.php3 (noting that the act's administrative costs at the state and school district levels will require the diversion of scarce resources from other activities).
265. See also MINNESOTA REPORT SUMMARY, supra note 95 (predicting that the costs of implementing NCLB may exceed the increase in NCLB revenue).
266. Brandi M. Powell, Take the Money or Run?: The Dilemma of the No Child Left Behind Act for State and Local Governments, 6 LOY. J. PUB. INT. L. 153, 162 (2005).
267. Id. at 170 (noting that supporters of NCLB suggest that the results of cost studies are erroneous because states are considering expenditures not actually required by the law and choosing options that are more costly than needed to comply with the law). Powell, however, argues that the government's claim that states are spending more money than necessary demonstrates that the government favors compliance over implementing the best educational practices possible).
268. Id. at 171.
269. NEA, supra note 104.
270. Congress Cuts NCLB, supra note 104.
271. See also YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 14 (reporting that "[i]n fiscal year (FY) 2006, federal funding for Title I and other key NCLB programs was cut for the first time since NCLB was enacted" and more specifically, that in 2006, "Title I [(which accounts for more than half of the federal funding for NCLB)] received $12.74 billion, a cut of more than 26 million from the FY 2005 level");
272. Schemo, supra note 104.
273. HONORABLE GEORGE MILLER, SENIOR DEMOCRATIC MEMBER COMM. ON EDUC. AND THE WORKFORCE, BUSH FISCAL YEAR 2007 EDUCATION BUDGET: BREAKS PROMISES, UNDERFUNDS PRESCHOOL AND K-12 EDUCATION, AND PUTS COLLEGE FARTHER OUT OF REACH FOR MILLIONS OF AMERICANS 3 (2006), available at http://edworkforce.house.gov/committee/publications/fy07edbudgetsummary.pdf.
274. But see YEAR 4 OF THE NO CHILD LEFT BEHIND ACT, supra note 5, at 14 (reporting that although President Bush's budget for FY 2007 proposes to further shrink federal education funding by about 3%, "[o]n the plus side, the budget for the first time recommends badly needed funding for NCLB school improvement grants").
275. Press Release, Reps. Miller & Kilder, Comm. on Educ. and Labor, On NCLB, President's Budget Undoes Damage From '06, But Still Leaves Schools Short: Budget Also Includes Unacceptable Funding Cuts for Children with Disabilities, Early Childhood Education, (Feb. 5, 2007), available at http://www.house.gov/apps/list/speech/edlabor_dem/rel020507.html.
276. Greenberger, supra note 21, at 1013-14.
277. 42 U.S.C. § 12132 (2000) [hereinafter title II of the ADA].
278. 29 U.S.C. § 794 (2000) [hereinafter section 504 of the RA].
279. See 42 U.S.C. § 12131; 29 U.S.C. § 794.
280. 42 U.S.C. § 12101(a)(3) (2000) (emphasis added).
281. See also 29 U.S.C. § 701(a)(3) (2000) ("Congress finds that disability is a natural part of the human experience and in no way diminishes the right of individuals to... (F) enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.").
282. See Galloway v. Superior Court of D.C., 816 F. Supp. 12, 20 (D.D.C. 1993).
283. 29 U.S.C. § 701(c) (2000).
284. See 42 U.S.C. 12131(1) (2000) ("The term 'public entity' means (A) any state or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government.").
285. Barnes v. Gorman, 536 U.S. 181, 185 (2002).
286. 42 U.S.C. § 12132 (2000).
287. See, e.g., Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
288. Rachel E. Brodin, Comment, Remedying a Particularized Form of Discrimination: Why Disabled Plaintiffs Can and Should Bring Claims For Police Misconduct Under the Americans With Disabilities Act, 154 U. PA. L. REV. 157, 191 (2005) ("Indeed, some courts examining actions in which plaintiffs have pleaded claims under both section 504 and title II have not distinguished between the two claims in their opinions.").
289. Lovell, 303 F.3d at 1052.
290. Paul T. O'Neill, High Stakes Testing Law and Litigation, 2003 B.Y.U. EDUC. & LJ. 623, 645 (2003).
291. See also 42 U.S.C. § 12131(2) (2000) (providing that a "qualified individual with a disability" is "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements" for the public program or service).
292. See 42 U.S.C. § 12131(1) (2000);
293. U.S.C. § 794 (2000). A school district is a "public entity" under title II of the ADA. Swenson v. Lincoln County Sch. Dist., 260 F. Supp. 2d 1136 (D. Wyo. 2003). Each year, the federal government provides states with federal funding for their public education systems.
294. See U.S. DEP'T OF EDUC. FUNDING, FUNDS FOR STATE FORMULA-ALLOCATED AND SELECTED STUDENT AID PROGRAMS (2007), available at http://www.ed.gov/about/overview/budget/statetables/ 08stbystate.pdf.
295. See 28 C.F.R. § 35.104 (2006);
296. C.F.R. § 104.3(j) (2006). Special education students have a physical or mental impairment that limits their ability to learn. Learning is a "major life activity" within the meaning of both Acts. See 28 C.F.R. § 35.104; 34 C.F.R. §104.3(j).
297. See 20 U.S.C.A. § 6311 (b)(3)(C)(ix) (Westlaw through May 2007 legislation) (requiring that state assessments "provide for the participation ... of all students" and "the reasonable adaptations and accommodations for students with disabilities.,. necessary to measure the academic achievement of such students");
298. U.S. Dep't of Educ., Working Together for Students with Disabilities: Individuals with Disabilities Education Act (IDEA) and No Child Left Behind Act (NCLB): Frequently Asked Questions (Dec 2005), at http://www.ed.gov/ admins/lead/speced/ toolkit/faqs.doc ("NCLB is the first law to hold schools accountable for ensuring that all students participate in the state assessment system."). The IDEA also requires that students with disabilities participate in state testing.
299. Id. The IDEA requires that "[a]ll children with disabilities are included in all general State and districtwide assessment programs... with appropriate accommodations and alternate assessments, where necessary and as indicated in their respective individualized education programs." 20 U.S.C.A. § 1412(c)(16)(A) (Westlaw through May 2007 legislation).
300. See 20 U.S.C.A. § 6311 (Westlaw through May 2007 legislation). Furthermore, state testing is part of the overall public educational system which is clearly a publicly funded program. Cheating not only denies students with disabilities full and equal participation in state testing, but also denies them full and equal participation in the public educational system.
301. See supra text accompanying note 213.
302. See supra Part II.B.1.
303. A school district may have an interesting argument where a student's individual needs dictate that the student be allowed to take an alternate assessment, but the school district is effectively coerced into giving the same assessment test that grade-level peers are required to take because of the 1% and 2% caps. The argument would be that the student is not qualified to take the test that the school is forced to administer. In other words, because of the student's disability, the student's test score will not provide an accurate measure of achievement and therefore, the student is not qualified to participate in state testing unless the school is allowed to accommodate by giving the alternate assessment. This argument would most likely fail. The 1% and 2% caps do not prevent schools from allowing students to take alternate assessments, but only limit the proficient scores on such assessments that can be counted toward adequate yearly progress. Furthermore, the inability to reasonably accommodate does not give an entity the right to exclude. NCLB provides that students with disabilities are to participate in state testing with or without accommodations.
304. The purpose of state testing is to provide students, parents, and educators with an accurate measure of student achievement so that schools are held accountable and so that administrators and educators can target areas that are in need of improvement. When an educator does not allow students with a cognitive disability to take the assessment test, provides them with the correct answers during the exam, or alters their answers before submitting them for scoring, that educator excludes these students from participation (with participation not just being sitting for the test, but participation in the essence of state testing, which as just stated, means more than just receiving a score, it means receiving a score that is an accurate and valid measure of one's academic achievement) and denies them the benefit of state testing (the benefit of an accurate and valid score by which the student and his parents can hold the school accountable). This exclusion or denial occurs because of the student's disability. The educator cheats because he or she believes that the student will attain a low score; however, it is because of the student's cognitive disability that the educator believes this. The belief may be the product of unconscious stereotypes, prejudice, or based on the fact that because of the disability, the student has performed poorly in the past.
305. 42 U.S.C. §§ 2000d to 2000d-7 (2000).
306. See Barnes v. Gorman, 536 U.S. 181, 185 (2002) (citations omitted). The remedies available under the ADA are the same as those available under the RA. The remedies available under the RA are the same as those available under title VI of the Civil Rights Act of 1964. Therefore, the remedies available under the ADA are the same as those available under title VI of the Civil Rights Act of 1964.
307. See id.
308. This Note will not discuss declaratory relief because in this context, it has no value to potential plaintiffs. Declaratory relief is designed "to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES 515 (3d ed. 2002). Here there is no uncertainty with respect to the rights of students with disabilities with respect to NCLB mandated testing.
309. See 20 U.S.C.A. 6311(b)(3)(C)(ix) (Westlaw through May 2007 legislation) (providing that state assessments must provide for the participation of all students and reasonable adaptations and accommodations for students with disabilities necessary to measure their academic achievement).
310. Mary L. Topliff, Remedies Available Under Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.), 136 A.L.R. FED. 63, 63 (1997) ("In actions brought under Title II for disability discrimination in public services, injunctive relief and attorneys' fees are available.");
311. Tennessee v. Lane, 541 U.S. 509, 517 (2004) ("Title II's enforcement provision incorporates by reference § 505 of the Rehabilitation Act of 1973,... as added, 29 U.S.C. § 794a, which authorizes private citizens to bring suits for money damages." (citation omitted)).
312. Barnes, 536 U.S. at 189. In Barnes v. Gorman, the Supreme Court held that punitive damages may not be awarded in private suits brought under section 202 of the ADA and section 504 of the Rehabilitation Act. Applying the same contract-law analogy it used in finding a damages remedy available in private suits under Spending Clause legislation, the Court concluded that because punitive damages are generally not available for breach of contract, they are not available under title VI, and therefore, may not be awarded in private suits under title II of the ADA and section 504 of the Rehabilitation Act.
313. Id. at 186. The Court noted that punitive damages were not necessary "to make good the wrong done" because of the availability of compensatory damages and that because "compensatory damages alone 'might well exceed a recipient's level of federal funding,' punitive damages on top of that could. . . be disastrous."
314. Id. at 188 (citations omitted). Indeterminate liability in the form of punitive damages would do more harm than good by detracting from an already scarce pool of financial resources money that could be allocated directly to efforts designed to improve education.
315. See supra note 222 and accompanying text. "An injunction is a court order, enforceable by sanctions for contempt of court, directing defendant to do or refrain from doing some particular thing." LAYCOCK, supra note 221, at 235. If done willfully, violating an injunction could subject educators to criminal penalties.
316. See id. at 237.
317. Parents need some way to ensure that cheating will not occur in the future since, as argued previously in this Note, parents cannot rely on local educational agencies and schools to fix the problem. See supra Part VIA.
318. See supra Part V.
319. See supra text accompanying notes 170-73 (noting that random auditing will probably only detect the most extreme forms of cheating).
320. Gillespie v. Dimensions Health Corp., 369 F. Supp. 2d 636, 640 (D. Md. 2005).
321. Many states are requiring students to pass a uniform, large-scale assessment in order to receive a high school diploma. See O'Neill, supra note 210, at 623.
322. See also Betsy A. Gerber, High Stakes Testing: A Potentially Discriminatory Practice With Diminishing Legal Relief For Students at Risk, 75 TEMP. L. REV. 863 (2002) (addressing the discriminatory effects that high stakes testing has on minority students).
323. 20 U.S.C.A. § 6311(b)(3)(C)(xii) (Westlaw through May 2007 legislation) (State assessment tests shall "produce individual student interpretive, descriptive, and diagnostic reports . . . that allow parents, teachers, and principals to understand and address the specific academic needs of students").
324. See infra notes 240-56 and accompanying text.
325. San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 38 (1973) (asserting that even an interest of such importance in our society as public education does not qualify as a "fundamental right" for equal protection purposes because it has no textually independent constitutional status).
326. Brown v. Bd. of Educ., 347 U.S. 483 (1954).