When performance matters: The past, present, and future of consequential accountability in public education

Harvard Journal on Legislation

Volumn 48, Issue 1, 2011, Pages 186-234

  Kress, Sandy ^a   Zechmann, Stephanie ^b   Schmitten, J Matthew ^c  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b Library of Congress

^c American University

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951560835     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (297)

1. George W. Bush, Remarks on Implementation of the No Child Left Behind Act of 2001 (Sept. 4, 2002) in THE AMERICAN PRESIDENCY PROJECT (John Wooley & Gerhard Peters eds.), http://www.presidency.ucsb.edu/ws/index.php?pid=73078 (last visited Oct. 26, 2010).
2. The definition of "consequential accountability" used in this Article is essentially the same definition provided in Eric A. Hanushek & Margaret E. Raymond, Does School Accountability Lead to Improved Student Performance?, 24 J. POL'Y ANALYSIS AND MGMT. 297, 311-12 (2005) (differentiating between states with just tests and standards-or "report card" states-and states that attach consequences to school performance-or "consequential accountability" states). Hanushek and Raymond define a state as a "consequential accountability" state if it both reports the results of standardized testing and attaches consequences to school performance vis-à-vis the test results.
3. Id. at 306.
4. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C. §§ 6301-7941 (2006)).
5. See 20 U.S.C. § 6311 (2006).
6. Improving America's Schools Act of 1994, Pub. L. 103-382, 108 Stat. 3518 (1994) (codified as amended at 20 U.S.C. § 6301 (2006)).
7. Boston Latin School, ENCYCLOPEDIA BRITANNICA, available at http://www.britannica.com/EBchecked/topic/74909/Boston-Latin-School (last visited Oct. 26, 2010).
8. LAWRENCE A. CREMIN, AMERICAN EDUCATION: THE NATIONAL EXPERIENCE, 1783-1876 155 (1980).
9. SARAH MONDALE, SCHOOL: THE STORY OF AMERICAN PUBLIC EDUCATION 28 (2002).
10. Common School Journal for the year 1839 (Horace Mann ed., 1839).
11. See id. at 5.
12. States differ on when students are allowed to drop out of school without violating truancy laws. According to an op-ed in the New York Times by Barbara Ehrenreich, a growing number of cities have begun ticketing and sometimes handcuffing teenagers found on the streets during school hours.
13. Barbara Ehrenreich, Op-Ed., Is It Now a Crime to Be Poor?, N.Y. TIMES, Aug. 9, 2009, available at http://www.nytimes.com/2009/08/09/opinion/09ehrenreich.html?pagewanted=2. In Los Angeles, the fine for truancy is $250; in Dallas, it can be as much as $500. Id.
14. There is even at least one website, Hooky Map.com, that displays public data on truancy geographically, highlighting areas that are relatively more or relatively less likely to see a high percentage of truant students. Florida Hooky Map-School Attendance by Zip- Percent of Florida Students Absent 21 Days +, HOOKY MAP, http://www.hookymap.com (last visited Oct. 26, 2010).
15. Daniel P. Resnick, Minimum Competency Testing Historically Considered, 8 REV. RES. EDUC. 3, 17-18 (1980), available at http://www.jstor.org/stable/1167122?origin=JSTOR-pdf.
16. 347 U.S. 483 (1954).
17. Sarah J. Reber, School Desegregation and Educational Attainment for Blacks 2 (Nat'l Bureau of Econ. Research, Working Paper No. 13193, 2007), available at http://www.nber.org/papers/w13193.
18. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958) (holding that all school districts were bound by the Supremacy Clause to follow Brown, notwithstanding any state laws or policies to the contrary; the case stemmed from the Little Rock Nine incident); Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964) (requiring a county to levy taxes to keep its public schools open in the name of desegregation).
19. Elementary and Secondary Education Act, Pub. L. No. 89-10, 79 Stat. 27 (1965) (codified as amended at 20 U.S.C. §§ 6301-7941 (2006)).
20. 79 Stat. at 36.
21. See, e.g., No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002) (codified at 20 U.S.C. §§ 6301-7941 (2006)) (latest reauthorization).
22. Id. at 4.
23. See Resnick, supra note 13, at 8-9.
24. Id. at 9.
25. Lorrie Shepard, Technical Issues in Minimum Competency Testing, 8 REV. RES. EDUC.
26. 30 (1980), available at http://www.jstor.org/stable/1167123?origin=JSTOR-pdf.
27. DIANE MASSELL & SUSAN FUHRMAN, TEN YEARS OF STATE EDUCATION REFORM, 1983-1993: OVERVIEW WITH FOUR CASE STUDIES v (1994).
28. See NAT'L COMM'N ON EXCELLENCE IN EDUC., A NATION AT RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM 5 (1983) [hereinafter NATION AT RISK], available at http://reagan.procon.org/sourcefiles/a-nation-at-risk-reagan-april-1983.pdf ("If an unfriendly foreign power had attempted to impose on America the mediocre educational performance that exists today, we might well have viewed it as an act of war. As it stands, we have allowed this to happen to ourselves.We have, in effect, been committing an act of unthinking, unilateral educational disarmament.").
29. Diane Ravitch, A Historic Document, in OUR SCHOOLS & OUR FUTURE: ARE WE STILL AT RISK? 28 (Paul E. Peterson ed., 2003).
30. See MASSELL & FUHRMAN, supra note 24, at 5.
31. Id. at 2 (noting that, despite huge state budget deficits, state legislatures "eagerly" enacted Nation-inspired reforms; for example, between 1983 and 1985, 41 states increased high school graduation requirements, a "diffusion rate" more than four times the historical rate for state policies without specific federal impetus).
32. Id. at 1.
33. NATION AT RISK, supra note 25, at 13-20.
34. See MASSELL & FUHRMAN, supra note 24, at 2.
35. Ravitch, supra note 26, at 27.
36. MASSELL & FUHRMAN, supra note 24, at 1.
37. Terrell H. Bell, Reflections One Decade After "A Nation at Risk", 74 PHI DELTA KAPPAN 592, 592-97 (1993); Ravitch, supra note 26, at 27.
38. See MASSELL & FUHRMAN, supra note 24, at 3-5 (describing how the Nation reforms led to an increase in inputs but not necessarily an increase in results).
39. Hanushek & Raymond, supra note 2, at 306.
40. DIANE MASSELL ET AL., PERSISTENCE AND CHANGE: STANDARDS-BASED REFORM IN NINE STATES 3 (1997).
41. Martin Carnoy & Susanna Loeb, Does External Accountability Affect Student Outcomes? A Cross-State Analysis, 24 EDUC. EVALUATION & POL'Y ANALYSIS 305, 306 (2002).
42. Hanushek & Raymond, supra note 2, at 1-2.
43. Carnoy & Loeb, supra note 38, at 306.
44. Hanushek & Raymond, supra note 2, at 298.
45. States "diverge[d] considerably" in the types of consequences attached to performance. Id. at 310. This Article discusses the different consequential accountability models in depth. See infra Part IV.
46. PBS, Domestic Politics, AMERICAN EXPERIENCE GEORGE H.W. BUSH, http://www.pbs.org/wgbh/amex/bush41/more/domestic.html (last visited Oct. 26, 2010).
47. MASSELL & FUHRMAN, supra note 24, at 11.
48. Id. at 19-20.
49. See generally U.S. DEP'T OF EDUC., THE IMPROVING AMERICA'S SCHOOLS ACT OF 1994: REAUTHORIZATION OF THE ELEMENTARY AND SECONDARY EDUCATION ACT (1995), available at http://eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED399649.
50. Sara Mead, Easy Way Out: "Restructured" Usually Means Little Has Changed, 7 EDUC. NEXT 53 (Winter 2007), available at http://educationnext.org/files/ednext_20071_52.pdf.
51. President George W. Bush, Statement Upon Signing H.R. 138 (Jan. 8, 2002), in 2002 U.S.C.C.A.N. 1614.
52. See Hanushek & Raymond, supra note 2, at 298.
53. Specifically, NCLB required that 95% of all students in a school, as well as 95% of each principal subgroup of students, be proficient in math and reading by 2014. 20 U.S.C. §§ 6311(b)(2)(C)(v)(II), 6311(b)(2)(I)(ii) (2006) (95% testing requirement).
54. See 20 U.S.C. § 6311 (2006) (discussing use of "State plans" and the requirements thereof, but containing much open-ended language allowing states flexibility).
55. See generally Approved State Accountability Plans, U.S. DEP'T OF EDUC., http://www2.ed.gov/admins/lead/account/stateplans03/index.html (last updated Aug. 2010).
56. 20 U.S.C. § 6311 (2006); 34 C.F.R. § 200.13-200.14 (2007).
57. 20 U.S.C. § 6316(b) (2006).
58. Mead, supra note 51, at 52.
59. 20 U.S.C. § 6316(b)(8)(B) (2006); Mead, supra note 51, at 52. This "fifth option" is a "safety valve" provision for schools that have heretofore often foreclosed the more stringent accountability options. See infra Part IV.B for a more elaborate discussion.
60. DAVID W. A. GRISSMER ET AL., IMPROVING STUDENT ACHIEVEMENT: WHAT STATE NAEP TEST SCORES TELL US xxi, xxiii, 97 (2000), available at http://www.rand.org/pubs/monograph_reports/MR924/index.html.
61. Id. at xxvi.
62. Id. at xviii.
63. Id. at 4.
64. see also Hanushek & Raymond, supra note 2, at 304 (using NAEP data for further analysis). NAEP, prior to 1990, had been given to a representative sample of the country, known as "NAEP long-term trends," but it was only in this year that comparing states became possible.
65. Hanushek & Raymond, supra note 2, at 309-10.
66. Carnoy & Loeb, supra note 38, at 309.
67. Id. at 322.
68. Id. at 320.
69. A. GRISSMER ET AL., supra note 62, at 99-100.
70. Id. That is, according to the Grissmer report, there was no statistically significant correlation sufficient to suggest relationship between NAEP success and resource-input differentials.
71. Id. Other variables deemed important to improving student achievement under conventional wisdom-higher teacher salaries, higher teacher educational levels, and increased experience- did not show significant effects on achievement.
72. Id. at 98.
73. Id. at 99-100.
74. That said, the RAND report also indicates that nothing that government has done has shown greater effects than "family factor" differentials, which just goes to the limitations on government's ability to effectuate educational achievement on its own.
75. See generally id.
76. MASSELL ET AL., supra note 37, at 25.
77. Hanushek & Raymond, supra note 2, at 310.
78. That is, those with "consequential accountability" systems.
79. See Hanushek & Raymond, supra note 2, at 321.
80. Because family factors are difficult to ascertain, and therefore to control for, this Article does not address them. However, it is worth noting that family factors, such as whether both parents are in the home or the education level of the parents, have a stronger effect on student achievement than anything government has done.
81. See A. GRISSMER, ET AL., supra note 62, at 97-98. This highlights the limitations on the government's ability to solve the problems facing the United States education system.
82. Id. at 98.
83. See, e.g., JAEKYUNG LEE, TRACKING ACHIEVEMENT GAPS AND ASSESSING THE IMPACT OF NCLB ON THE GAPS: AN IN-DEPTH LOOK INTO NATIONAL AND STATE READING AND MATH OUTCOME TRENDS 10-11 (2006), available at http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/tracking-achievement-gaps-and-assessing-the-impact-ofnclb-on-the-gaps/lee-tracking-achievement-gaps-2006.pdf.
84. Bruce Fuller et al., Gauging Growth: How to Judge No Child Left Behind?, 36 EDUC. RESEARCHER 268, 275 (2007), available at http://www.aera.net/uploadedFiles/Publications/Journals/Educational_Researcher/3605/07EDR07_268-278.pdf.
85. See, e.g., LEE, supra note 92.
86. This Article is not intended to provide a rigorous scientific analysis of the data. Thus, while the data appear to support the hypothesis that consequential accountability had a positive effect on student achievement in the later 1990s and early 2000s, more research is needed to evaluate this conclusion and to control for other factors that may be at work. While the authors do not attempt to demonstrate scientifically the causal impact of consequential accountability policies on student achievement, they believe that the correlation between the rise of consequential accountability and the gains in student achievement during the years that followed supports the hypothesis that consequential accountability leads to positive gains in student achievement.
87. Thomas Dee & Simon Jacob, The Impact of No Child Left Behind on Student Achievement 36-37 (Nat'l Bureau of Econ. Research, Working Paper No. 15531, 2009), available at http://www.nber.org/papers/w15531.
88. Id. at 37.
89. Id. at 16.
90. Id. at 20.
91. The reason Dee and Jacob suggest that they may have underestimated gains under NCLB is that their estimates identified the impact of NCLB-induced school-accountability provisions on states without prior accountability policies, thus leaving out states that adopted accountability policies prior to NCLB. Id.
92. For example, in a 2006 comprehensive study, Lee concludes that NCLB had little effect on student achievement and did not result in a significant increase in the rate at which achievement gaps are narrowing.
93. LEE, supra note 92, at 10-11.
94. In a 2007 study, Fuller, Wright, Gesicki, and Kang describe NCLB as having mixed results. The researchers note that on the NAEP assessment, significant progress occurred in both reading and math around the time that NCLB went into effect, but contend that these gains cannot be attributed to NCLB since they occurred before NCLB had any real chance to impact student achievement.
95. A. Fuller et al., supra note 92, at 275.
96. The NAEP data is examined in the context of the 1990s growth of consequential accountability rather than in the context of NCLB's passage.
97. A. Fuller et al., supra note 92, at 269.
98. The key distinction between the NAEP's disaggregated data and the NCLB's disaggregated data is that the NAEP exam is only given to a relatively small sample of students within each state and only provides state-level and national-level data, whereas state tests under NCLB provide school-level data. Moreover, NCLB's data disaggregation requirement is significant because it required states to collect disaggregated data at the school level for the first time and then to hold schools responsible for the performance of all of their subgroups of students.
99. See Neal McCluskey & Andrew J. Coulson, End It, Don't Mend It: What to Do with No Child Left Behind, CATO INST. POL'Y ANALYSIS, Sept. 5, 2007, at 1, 3, available at http://www.cato.org/pubs/pas/Pa599.pdf (noting that pre-NCLB score trends must be compared with post- NCLB score trends in order to "have any hope of isolating NCLB's actual effect on student achievement and test score gaps").
100. U.S. DEP'T OF EDUC., SCHOOL POVERTY AND ACADEMIC PERFORMANCE: NAEP ACHIEVEMENT IN HIGH-POVERTY SCHOOLS-A SPECIAL EVALUATION REPORT FOR THE NATIONAL ASSESSMENT OF TITLE I (Sept. 1998), http://www2.ed.gov/pubs/schoolpoverty/index.html.
101. The number in parentheses ("11*") represents the change in reading scores if one accounts for the changes in the NAEP test that occurred in 2004. The NAEP Long Term Trend Assessment underwent several changes in 2004 and data are available in 2004 for both the old and new versions of the test. This Article uses two methods when calculating changes in scores from 1999 to 2008. The primary method is to simply subtract the 1999 score from the 2008 score, a method that may not fully capture the difference in scores since it does not account for variations in the 2004 scores between the two versions of the test. The second method calculates the change in scores for each version of the test and adds them together (i.e. (2004old -1999old) + (2008new - 2004new)). This result is indicated by including the second calculation in parentheses with an asterisk.
102. BOBBY D. RAMPEY ET AL., NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC. INST. OF EDUC. SCIS., THE NATION'S REPORT CARD: 2008 TRENDS IN ACADEMIC PROGRESS: EXCECUTIVE SUMMARY 3 (2009), available at http://nces.ed.gov/nationsreportcard/pubs/main2008/2009479.asp.
103. Id. at 3.
104. Reading scores for 13-year-olds increased from 257 to 259 from 1990 to 1999; from 1999 to 2008, the scores increased from 259 to 260 points, a gain of only 1 (3*) point. Reading scores for 17-year-olds decreased by 2 points from 1990 to 1999 and decreased by 2 (0*) points from 1999 to 2008. Id.
105. Id. at 14.
106. Id. The white-black reading achievement gap for 9-year-olds was 35 points in both 1990 and 1999.
107. Id. From 1971 to 1980, 9-year-old black students' scores increased by 19 points on the NAEP long term reading assessment and the racial achievement gap narrowed by 12 points.
108. Id. at 15.
109. Id. at 16.
110. Id. at 17.
111. The scores of ELLs are not disaggregated for the NAEP Long-Term Trend Assessment; for this reason, the discussion of ELL scores uses data from the standard NAEP Assessment rather than the Long-Term Trend Assessment.
112. See Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis., NAEP-2009 Reading: Grade 4 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/reading_2009/nat_g4.asp?subtab_id=Tab_7&tab_id=tab1 (last visited Oct. 26, 2010).
113. From 1998 to 2009, eighth grade ELL reading scores rose by only one point, with scores rising slightly from 1998 to 2002 and declining somewhat from 2002 to 2009. Id.
114. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis., NAEP-2009 Reading: Grade 4 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/reading_2009/nat_g4.asp?subtab_id=Tab_6&tab_id=tab1 (last visited Oct. 26, 2010).
115. Eighth grade reading scores for SWDs grew by 4 points from 1998 to 2002 and by 2 points from 2002 to 2009. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis.
116. NAEP-2009 Reading: Grade 8 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/reading_2009/nat_g8.asp?subtab_id=Tab_6&tab_id=tab1 (last visited Oct. 26, 2010).
117. RAMPEY ET AL., supra note 107, at 3.
118. Id. at 34.
119. id 35.
120. Id. at 36.
121. In comparison, from 1973 to 1999, scores of Hispanic 9-year-olds only increased by 11 points. Id.
122. In 2008, the average math score for Hispanic 9-year-olds was 234; the average score for white 9-year-olds was 235 in 1990 and 1992 and 237 in 1994 and 1996.
123. Id. at 37.
124. Scores rose from 255 to 259. Id.
125. The Hispanic-white math achievement gap for thirteen-year-olds increased by two points from 1990 to 1999 and decreased by one point from 1999 to 2008.
126. The source of ELL math data is the standard NAEP assessment, which only has data for ELL students beginning in 1996. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis.
127. NAEP-Mathematics 2009: Grade 4 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/math_2009/gr4_national.asp?subtab_id=Tab_7&tab_id=tab1 (last visited Oct. 26, 2010).
128. From 1996 to 2000, eighth grade ELL scores in math increased by 8 points. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis., NAEP-Mathematics 2009: Grade 8 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/math_2009/gr8_national.asp?subtab_id=Tab_7&tab_id=tab1 (last visited Oct. 26, 2010).
129. Data on the math scores of students with disabilities are available beginning in 1996. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis.
130. NAEP-Mathematics 2009: Grade 4 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/math_2009/gr4_national.asp?subtab_id=Tab_6&tab_id=tab1 (last visited Oct. 26, 2010).
131. Nat'l Ctr. for Educ. Statistics, U.S. Dep't of Educ. Inst. Of Educ. Scis., NAEP-Mathematics 2009: Grade 8 National Results, THE NATION'S REPORT CARD, http://www.nationsreportcard.gov/math_2009/gr8_national.asp?subtab_id=Tab_6&tab_id=tab1 (last visited Oct. 26, 2010).
132. Data from the 1990s strongly support the proposition that consequential accountability leads to significant positive gains in student achievement. See supra Part III.A. More research is needed to assess data from the 2000s; however, a preliminary examination of the data supports the finding that the growth of the consequential accountability movement likely had positive effects on student achievement in the 2000s, especially among certain subgroups and at the fourth grade level. See supra Part III.B.
133. Craig D. Jerald & Ulrich Boser, Who's Holding Schools Responsible?, 18 EDUC. WEEK 81 (1999), available at http://www.edcounts.org/archive/sreports/qc99/ac/tables/ac-c1.htm.
134. While many states implemented consequential accountability systems in the 1990s, Texas and North Carolina were unique in that their statutes attached consequences to both high and low performance.
135. Id. However, according to David Dunn, "while these rewards were authorized, they have not been funded on a continuing basis." Telephone Interview with David Dunn, Exec. Dir., Tex. Charter Sch. Ass'n (Nov. 12, 2010).
136. David Grissmer & Ann Flanagan, Exploring Rapid Achievement Gains in North Carolina and Texas, NAT'L EDUC. GOALS PANEL, 6-7 (1998), available at http://govinfo.library.unt.edu/negp/reports/grissmer.pdf.
137. Sarah W. Nelson et al., Fulfilling the Promise of Educational Accountability, 88 PHI DELTA KAPPAN 702, 702 (2007).
138. Tex. S.B. 7, 73d Leg., R.S., available at http://www.legis.state.tx.us/tlodocs/73R/billtext/html/SB00007F.html (subsequently enacted as Act of May 28, 1993, 73d Leg., 1993 Tex. Gen. Laws 1479).
139. Grissmer & Flanagan, supra note 170, at 29.
140. Tex. S.B. 7 § 35.021.
141. Tex. S.B. 7 § 35.022.
142. Tex. S.B. 7 § 35.024.
143. Tex. S.B. 7 § 35.041(b).
144. CRAIG D. JERALD, Real Results, Remaining Challenges: The Story of Texas Education Reform, in THE BUSINESS ROUNDTABLE 3 (2001), available at http://eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED459191.
145. Tex. S.B. 7 § 35.041(b).
146. JERALD, supra note 179, at 3.
147. See Tex. S.B. 7 § 35.027(a) (directing that "[a]ny student who has a physical or mental impairment or a learning disability that prevents the student from mastering the competencies which the academic skills assessment instruments are designed to measure may be exempted from the requirements of this subchapter").
148. Nelson et al., supra note 172, at 703.
149. JERALD, supra note 179, at 3.
150. ACHIEVE, INC., AIMING HIGHER: MEETING THE CHALLENGES OF EDUCATION REFORM IN TEXAS 19 (2002), http://www.achieve.org/files/Aiming_Higher_Texas.pdf.
151. For example, Jerald notes that in the years following the implementation of Texas's accountability system, "Texas [saw] dramatic increases in passing rates across all grade levels and subjects on the state's Texas Assessment of Academic Skills (TAAS) exams, coupled with equally dramatic decreases in racial and socioeconomic gaps on those tests." JERALD, supra note 179, at 6.
152. JERALD, supra note 179, at 5.
153. For example, for the "Academically Acceptable" rating, minimum proficiency levels rose by 5% per year from 1995 to 2000.
154. Id. at 4.
155. Tex. S.B. 7 § 35.081, 73d Leg., R.S., available at http://www.legis.state.tx.us/tlodocs/73R/billtext/html/SB00007F.html (subsequently enacted as Act of May 28, 1993, 73d Leg., 1993 Tex. Gen. Laws 1479).
156. However, according to David Dunn, "while these rewards were authorized, they have not been funded on a continuing basis." Telephone Interview with David Dunn, Exec. Dir., Tex. Charter Sch. Ass'n (Nov. 12, 2010).
157. Tex. S.B. 7 § 35.121(a)(3). This sanction allows the commissioner of education to "order the preparation of a student achievement improvement plan that addresses each academic excellence indicator for which the district's performance is unacceptable" and order the implementation of the plan.
158. Tex. S.B. 7 § 35.121(a)(2). Public hearings function as a sanction because they draw attention to the fact that the school has not met established standards.
159. Tex. S.B. 7 § 35.121(a)(6)-(7); Heinrich Mintrop & Tina Trujillo, Corrective Action in Low Performing Schools: Lessons for NCLB Implementation from First-generation Accountability Systems, 13 EDUC. POL'Y ANALYSIS ARCHIVES 1, 5 (Dec. 1, 2005), available at http://epaa.asu.edu/ojs/article/viewFile/153/279.
160. Tex. S.B. 7 § 35.121(a)(8)-(9).
161. Grissmer & Flanagan, supra note 170, at 29.
162. ACHIEVE, INC., supra note 186, at 25.
163. Mintrop & Trujillo, supra note 192, at 1, 6.
164. ACHIEVE, INC., supra note 186, at 25; Mintrop & Trujillo, supra note 192, at 1, 6.
165. Mintrop & Trujillo, supra note 192, at 1, 12.
166. Grissmer & Flanagan, supra note 170, at 32.
167. School-Based Management and Accountability Program, N.C. GEN STAT. ANN. § 115c-105.20 (2010).
168. ABCS OF PUBLIC EDUCATION: A JOURNEY TOWARD EXCELLENCE 3 (North Carolina Board of Education) (1999), available at http://eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED469452 [hereinafter ABCS OF PUBLIC EDUCATION]. Perhaps the Board of Education can be forgiven for using the rather attenuated shortened name.
169. Id. at 2.
170. N.C. GEN. STAT. ANN. § 115c-105.20(b).
171. ABCS OF PUBLIC EDUCATION, supra note 200, at 3.
172. N.C. GEN. STAT. ANN. § 115c-105.27(a).
173. COLUMBUS CNTY. SCHS., OVERVIEW OF THE ABCS OF PUBLIC EDUCATION 1 (2003), http://www.columbus.k12.nc.us/hms/FAQ%20documents/abcs.pdf.
174. N.C. GEN. STAT. ANN. § 115c-105.3.
175. The disaggregation of data would have allowed the state to measure the progress of subgroups of students, thereby identifying low-performing groups and setting goals for the progress of those groups.
176. Kathleen Kennedy Manzo, Policy Update: North Carolina Seeing a Payoff-Quality Counts '99, EDUC. WEEK ON THE WEB, http://www.edcounts.org/archive/sreports/qc99/states/policy/nc-up.htm (last visited Oct. 26, 2010).
177. Helen F. Ladd & Arnaldo Zelli, School-Based Accountability in North Carolina: The Responses of School Principals, 38 EDUC. ADMIN. Q. 494, 499 (2002), available at http://eaq.sagepub.com/content/38/4/494.full.pdf+html.
178. Manzo, supra note 209.
179. Ladd & Zelli, supra note 210, at 500.
180. COLUMBUS CNTY. SCHS., supra note 205, at 2. 213
181. ABCs of Public Education, ch. 716, 1995 N.C. Sess. Laws 352, 368-69. Since the implementation of the ABCs law, North Carolina has made some changes to its accountability sanctions. Currently, if a school is identified as "low performing" under the ABCs law, it becomes eligible to receive assistance from the District and School Transformation Division.
182. Mintrop & Trujillo, supra note 192, at 15.
183. No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301-7941 (2006).
184. Dee & Jacob, supra note 95, at 2.
185. Caroline M. Hoxby, Inadequate Yearly Progress: Unlocking the Secrets of NCLB, 5 EDUC. NEXT 46, 48 (2005), available at http://educationnext.org/files/ednext20053_46.pdf.
186. Richard Wenning et al., No Child Left Behind: Testing, Reporting, and Accountability, EDUC. RESOURCES INFO. CTR. DIG., Aug. 2003, at 1, 3, available at http://eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED480994.
187. U.S. DEP'T OF EDUC., HOW NO CHILD LEFT BEHIND BENEFITS AFRICAN AMERICANS, available at http://www2.ed.gov/nclb/accountability/achieve/nclb-aa.html.
188. See supra Part III.B.
189. Hoxby, supra note 217, at 49.
190. Id. at 48.
191. Jessica Flynn, Note, No Child Left Behind Gets a Tip from Tort Theory: Protecting Responsible Schools Against Undeserved Sanctions, 31 T. JEFFERSON L. REV. 157, 166 (2008).
192. In fact, President George W. Bush's administration's original NCLB proposal did call for rewards, although this provision was ultimately removed because it faced significant opposition in Congress from both the left and the right. NO CHILD LEFT BEHIND, OFFICE OF PRESIDENT GEORGE W. BUSH 9 (2001), available at http://www2.ed.gov/nclb/overview/intro/presidentplan/proposal.pdf (noting that the Bush administration proposed that "[s]chools and states that make significant progress in closing the achievement gap will be honored with awards from a 'No Child Left Behind' school bonus fund and an 'Achievement in Education' state bonus fund").
193. See supra Part II.B.
194. No Child Left Behind Act, 20 U.S.C. § 6316(b)(1)(A) (2006).
195. TEX. ASSOC. OF SCH. BDS., A COMPARISON OF THE NCLB AND TEXAS ACCOUNTABILITY SYSTEMS 6 (2008), http://www.tasb.org/legislative/documents/account_diff1008.pdf.
196. Id. at 7.
197. The statute does not define "relevant school staff." It merely states that a school may "replace the school staff who are relevant to the failure to make adequate yearly progress." 20 U.S.C. § 6316(b)(7)(C)(iv)(I).
198. 20 U.S.C. § 6316(b)(7)(C)(iv)(VI).
199. 20 U.S.C. § 6316(b)(8)(B).
200. Mead, supra note 51, at 53.
201. Id. at 53-54.
202. For example, Mead notes that in Michigan, schools can "restructure" by simply hiring a state-trained "coach" who will design and implement a school improvement plan. Id. at 54.
203. Mintrop & Trujillo, supra note 192, at 7.
204. ACHIEVE, INC., supra note 186, at 25.
205. Mead, supra note 51, at 53.
206. To be clear, there is a difference between "content standards" and "performance standards." The latter refers to the standards used to determine proficiency on tests whereas the former are used generally to describe the knowledge and skills that the state intends that its students attain. This Part concerns issues around performance standards.
207. Paul E. Peterson, A Lens That Distorts, 7 EDUC. NEXT 46, 49 (2007), available at http://educationnext.org/files/ednext_20074_46.pdf.
208. This is not to say that this variation is related to NCLB-indeed, there was wide variation in standards long before NCLB became effective-the only point here pertains to the interstate comparability of NCLB's AYP bifurcation.
209. Again, this dilution could affect either performance standards or content standards.
210. Paul E. Peterson & Frederick M. Hess, Johnny Can Read.Assessing the Rigor of State Assessment Systems, 5 EDUC. NEXT 52, 52-53 (2005), available at http://educationnext.org/files/ednext20053_52.pdf.
211. See Chester E. Finn Jr. & Michael Petrilli, A New New Federalism: The case for national standards and tests, 6 EDUC. NEXT 48, 50-51 (2006), available at http://educationnext.org/files/ednext20064_48.pdf (making the point that since federal funding will come regardless of AYP, schools are probably more concerned with "irate local superintendents and school board members who don't want NCLB to shine a harsh light on their schools' shortcomings").
212. David Figlio and Cecilia Elena Rouse also provided a study indicating that the threat of failure "stigma" has been an effective motivator for increasing achievement in Florida schools. David N. Figlio & Cecelia Elena Rouse, Do Accountability and Voucher Threats Improve Low-Performing Schools?, 90 J. OF PUB. ECON. 239, 239-55 (2006).
213. Compare, e.g., Paul E. Peterson & Frederick M. Hess, Few States Set World-Class Standards: In fact, most render the notion of proficiency meaningless, 8 EDUC. NEXT 70, 70-72 (2008), available at http://educationnext.org/files/ednext_20083_70.pdf (emphasizing the incomparability), with Finn & Petrilli, supra note 243, at 49 (emphasizing the disincentive NCLB creates).
214. Framing the issue this way is useful in that it helps explain why many states-most prominently Massachusetts, but also Missouri, Washington, and Hawaii-have not reduced standards despite having an incentive to do so.
215. Paul E. Peterson & Carlos Xabel Lastra-Anadón, State Standards Rise in Reading, Fall in Math, 10 EDUC. NEXT 12, 14 (2010), available at http://educationnext.org/files/ednext_20104_12.pdf.
216. It is likely that the disincentive against lowering standards, such as voter pressure, outweighs the material incentive they have to lower their standards. It is also worth noting that this Article does not mean to suggest that states may not want different standards for any number of valid reasons. It suggests only that states only have an incentive to lower their standards if some sort of negative incentive outweighs the incentive to maintain high standards.
217. Peterson & Hess, supra note 241, at 71.
218. Finn & Petrilli, supra note 243, at 48-50.
219. Peterson & Hess, supra note 241, at 71.
220. Peterson & Lastra-Anad́ on, supra note 245, at 13.
221. Data for two states were unavailable.
222. Id. See also KEVIN CAREY, THE EVIDENCE SUGGESTS OTHERWISE-THE PANGLOSS INDEX: HOW STATES GAME THE NO CHILD LEFT BEHIND ACT 3, 5 (2007), available at http://www.educationsector.org/usr_doc/The_Pangloss_Index.pdf (showing that Alabama "gamed" its standards to hide failures in education policy).
223. Peterson and each of his co-authors calculate differences in performance standards by calculating the difference between scores on state accountability tests and performance on the NAEP "common stick," which shows over time whether performance standards have increased or decreased relatively. IES performed a similar study and corroborated Peterson's findings.
224. See NAT'L CTR. FOR EDUC. STATISTICS, INST. OF EDUC. SCIS., U.S. DEP'T OF EDUC., MAPPING STATE PROFICIENCY STANDARDS ONTO NAEP SCALES: 2005-2007 (2009), available at http://nces.ed.gov/nationsreportcard/pdf/studies/2010456.pdf.
225. Peterson & Lastra-Anad́ on, supra note 245, at 13.
226. Even though it is not much of a problem, NCLB reform could not keep the incentive structure the same. If, as this Article suggests, the accountability provisions of NCLB are strengthened, the change will effectively increase the problem of downward pressure on standards since failing to meet AYP would mean more than just public embarrassment. To correct for this, there has to be some countervailing change in the incentive structure to ensure that the incentive to decrease standards (or disincentive for raising them) does not increase.
227. See Robert Gordon, Political Realities: To get national standards, leaders need to be bold, 6 EDUC. NEXT 56 (2006), available at http://educationnext.org/files/ednext20064_56.pdf.
228. Andrew Rudalevige, The Politics of No Child Left Behind: Lessons from the Clinton years taught Washingtonians that dollars need to be tied to gains in student performance. But did the need to build consensus give too much leeway to state capitols?, 3 EDUC. NEXT 63, 64 (2003), available at http://educationnext.org/files/ednext20034_62.pdf.
229. Press Release, Nat'l Governors Ass'n, Fifty-One States And Territories Join Common Core State Standards Initiative (Sept. 1, 2009), available at http://www.nga.org/portal/site/nga/menuitem.6c9a8a9ebc6ae07eee28aca9501010a0/?vgnextoid=1716f7e861ed3210VgnVCM1000005e00100aRCRD&vgnextchannel=759b8f2005361010VgnVCM1000001a01010aRCRD.
230. James Peyser, Hoop Hassles: Incentives, not national control, 6 EDUC. NEXT 52, 55 (2006), available at http://educationnext.org/files/ednext20064_52.pdf.
231. It would not have an effect against the disincentive for heightening standards, unless, of course, the higher standards themselves induced greater performance on the NAEP.
232. This is still true when testing is done every year. The poorly performing student goes through the same grade to learn the same material again and would take a test at the same level rather than a more difficult test the following year.
233. NCLB requires 95% test participation but excludes from that number severely disabled students. 20 U.S.C. § 1412(a)(16)(C) (2006).
234. Brian A. Jacob, High Stakes in Chicago: Did Chicago's rising test scores reflect genuine academic improvement?, 3 EDUC. NEXT 66, 68-69 (2003), available at http://educationnext.org/files/ednext20031_66.pdf.
235. Brian A. Jacob, Incentives and Behavior: The Impact of High-Stakes Testing in the Chicago Public Schools (Nat'l Bureau of Econ. Research, Working Paper No. 8968, 2002), available at http://www.nber.org/papers/w8968.pdf.
236. Eric A. Hanushek & Margaret E. Raymond, Lessons about the Design of State Accountability Systems 21-22 (2002) (unpublished manuscript), available at http://edpro.stanford.edu/hanushek/admin/pages/files/uploads/accountability.Harvard.publication%20version.pdf.
237. DANIEL M. KORETZ & SHEILA BARRON, THE VALIDITY OF GAINS IN SCORES ON THE KENTUCKY INSTRUCTIONAL RESULTS INFORMATION SYSTEM (KIRIS) 34-35, 110-11 (1998), available at http://www.rand.org/pubs/monograph_reports/2009/MR1014.pdf.
238. Carnoy & Loeb, supra note 38, at 313-22. 264
239. Hanushek & Raymond, supra note 261, at 19-23.
240. Id. at 19-20.
241. Administrative tenure and the use of longer-scale data by schools to judge administrator pay are examples of possible cures. It is likely both politically unfeasible and inappropriate on the grounds of federalism for the federal government to begin directing schools' personnel policies in such a broad way as would be required to combat this problem.
242. 20 U.S.C. § 6311(2)(I)(ii) (2006).
243. THOMAS B. FORDHAM INST., THE ACCOUNTABILITY ILLUSION 17 (2009), available at http://edexcellence.net/accountability_illusion/Introduction%20and%20Methodology.pdf.
244. Id. at 32-46, available at http://edexcellence.net/accountability_illusion/Findings%20and%20Limitations.pdf
245. id. at 47-49, available at http://edexcellence.net/accountability_illusion/Discussion.pdf.
246. INT'L READING ASSOC., HIGH-STAKES ASSESSMENTS IN READING: A POSITION STATEMENT OF THE INTERNATIONAL READING ASSOCIATION (1999), http://www.reading.org/Libraries/Position_Statements_and_Resolutions/ps1035_high_stakes.sflb.ashx.
247. Jay Mathews, Let's Teach to the Test, WASH. POST, Feb. 20, 2006, at A21, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/02/19/AR2006021900976.html.
248. Mathews echoes another worthy sentiment: why would teaching to the test or curriculumnarrowing be bad? If the tests measure what students should learn, and the curriculum is tailored to what students should know, what is the problem?
249. Thomas Dee & Brian Jacob, Evaluating NCLB: Accountability has produced substantial gains in math skills but not in reading, 10 EDUC. NEXT 54, 59-61 (2010), available at http://educationnext.org/files/EdNext_20103_54.pdf.
250. Lorin W. Anderson, Upper Elementary Grades Bear the Brunt of Accountability, 90 PHI DELTA KAPPAN 413, 414-15 (2009).
251. Hanushek & Raymond, supra note 261, at 22.
252. JAMES TAYLOR ET AL., U.S. DEP'T OF EDUC., STATE AND LOCAL IMPLEMENTATION OF THE NO CHILD LEFT BEHIND ACT: VOLUME IX - ACCOUNTABILITY UNDER NCLB: FINAL REPORT 139-41 (2010), available at http://www2.ed.gov/rschstat/eval/disadv/nclb-accountability/nclb-accountability-final.pdf.
253. Both of these time periods are after the passage of NCLB but, given the close proximity of NCLB to the first time period, one would have expected curriculum-narrowing-even great curriculum-narrowing-as time goes on and 2014 gets closer. On another note, one might wonder how these increases could take place without decreases in other subjects. The Department of Education report suggests that the increases were accomplished through lengthening the school day, more focused use of existing classroom time, decreases in lunch periods or other non-instructional activities, or that the principal was unaware of reductions in other subjects that teachers made on an individual basis.
254. Richard F. Elmore & Susan H. Fuhrman, Holding Schools Accountable: Is It Working?, 83 PHI DELTA KAPPAN 67, 71 (2001).
255. William G. Howell, One Child at a Time: An inside look at one city's efforts to offer families the opportunities promised by No Child Left Behind, 4 EDUC. NEXT 26 (2004), available at http://educationnext.org/files/ednext20043_26.pdf.
256. Michael Petrilli, Testing the Limits of NCLB: Implementation is not the problem, 7 EDUC. NEXT 52, 53 (2007), available at http://educationnext.org/files/ednext_20074_52.pdf.
257. Petrilli, supra note 280, at 53. 282
258. Howell, supra note 280, at 28.
259. Id. at 29.
260. see also Petrilli, supra note 280, at 53 (describing the disincentives for dis- tricts to inform parents of their options).
261. However, the Department of Education did start a pilot program in 2005 that allowed a few select states to integrate growth models into their accountability systems.
262. See Press Release, U.S. Sec'y of Educ. Margaret Spellings, Secretary Spellings Announces Growth Model Pilot, Addresses Chief State School Officers' Annual Policy Forum in Richmond (Nov. 18, 2005), available at http://www2.ed.gov/news/pressreleases/2005/11/11182005.html.
263. If the school adds great value to its median student, one has to imagine it is more likely than otherwise to meet AYP, so this theoretical problem should not be over-emphasized.
264. See Peterson, supra note 239, at 51.
265. see also Hoxby, supra note 217, at 50 (discussing a change that would take into account the progress students make towards proficiency even if they do not achieve it).
266. Paul E. Peterson & Martin West, Is Your Child's School Effective?: Don't rely on NCLB to tell you, 6 EDUC. NEXT 76, 78-79 (2006), available at http://educationnext.org/files/ednext20064_76.pdf.
267. See John Cloud, Are We Failing Our Geniuses?, TIME (Aug. 16, 2007), http://www.time.com/time/magazine/article/0,9171,1653653-1,00.html (last visited Oct. 30, 2010).
268. Peterson, supra note 239, at 47.
269. But see Dianne Piché, Basically a Good Model: NCLB can be fixed, 7 EDUC. NEXT 57, 58 (2007), available at http://educationnext.org/files/ednext_20074_57.pdf
270. Matthew G. Springer, Accountability Incentives: Do schools practice educational triage, 8 EDUC. NEXT 74, 77-79 (2008), available at http://educationnext.org/files/ednext_20081_74.pdf.
271. Peterson, supra note 239, at 48. As with the idea of a "growth model," there are some states that have implemented more nuanced point-scale systems under current law, although they must still either pigeon-hole their system into the "AYP/Not-AYP" NCLB dichotomy or obtain a waiver from the Department of Education to not do so.
272. OFFICE OF PLANNING, EVALUATION, AND POLICY DEV., U.S. DEP'T OF EDUC., A BLUEPRINT FOR REFORM (2010), available at http://www2.ed.gov/policy/elsec/leg/blueprint/blueprint.pdf.
273. For an excellent overall summary of the Blueprint, see Chad Aldeman, Obama's Blueprint for ESEA Reauthorization, THE QUICK AND THE ED (Mar. 15, 2010), http://www.quickanded.com/2010/03/obamas-blueprint-for-esea-reauthorization.html. For a more descriptive but less analytical summary, see EDUCATIONCOUNSEL LLC, THE OBAMA ADMINISTRATION'S "BLUEPRINT" FOR ESEA REAUTHORIZATION: OUTLINE OF KEY POINTS (Mar. 18, 2010), http://publicpolicyinternational.com/files/Elementary_and_Secondary_Education_Acts.pdf.
274. E.g., Julian E. Zelizer, Democrats' Best Defense? Good Offense, CNN (Nov. 15, 2010, 11:38 AM), http://www.cnn.com/2010/OPINION/11/15/zelizer.democrats.offense/.
275. Sam Dillon, Obama Calls for Major Change in Education Law, N.Y. TIMES, Mar. 13, 2010, at A1, available at http://www.nytimes.com/2010/03/14/education/14child.html?_r=2.
276. OFFICE OF PLANNING, EVALUATION, AND POLICY DEV., U.S. DEP'T OF EDUC., supra note 292.
277. It is possible, indeed likely, that under such a system, a state could adopt the "stan- dards magnet" approach followed by the successful Texas model.
278. See JERALD, supra note 179, at 4.
279. Rose Garrett, The New NCLB Blueprint: The Good, the Bad, and the Ugly, CHANGE. ORG (Mar. 19, 2010), http://education.change.org/blog/view/the_new_nclb_blueprint_the_good_the_bad_and_the_ugly.
280. OFFICE OF PLANNING, EVALUATION, AND POLICY DEV., U.S. DEP'T OF EDUC., supra note 292.
281. Obama offers blueprint for rewriting NCLB, ESCHOOL NEWS (Mar. 15, 2010), http://www.eschoolnews.com/2010/03/15/obama-offers-blueprint-for-rewriting-nclb.
282. See generally PRACTICE GUIDES, U.S. DEPT. OF EDUC., INST. OF EDUC. SCIS., http://ies.ed.gov/ncee/wwc/publications/practiceguides/ (last visited Nov. 16, 2010).
283. See Howell, supra note 280, at 28-30.
284. Petrilli, supra note 280, at 53.
285. Dillon, supra note 294; OFFICE OF PLANNING, EVALUATION, AND POLICY DEV., U.S. DEP'T OF EDUC.
286. supra note 292.
287. Dillon, supra note 294.
288. see also Greg Toppo, Education Groups Laud, Criticize Obama 'No Child' Overhaul Plan, USA TODAY, Mar. 15, 2010, available at http://www. usatoday.com/news/education/2010-03-14-education_N.htm.
289. Rose Garrett, NCLB Reauthorization: The New Blueprint, EDUCATION.COM (Mar. 16, 2010), http://www.education.com/magazine/Article/new-nclb-blueprint.
290. Apparently, the New York Times has accepted that these measures are stronger than those under NCLB, for the applicable schools at least.
291. See Dillon, supra note 294. The Christian Science Monitor has drawn this conclusion as well.
292. See Gail Russell Chaddock, Obama's No Child Left Behind revise: a little more flexibility, CHRISTIAN SCI. MONITOR, Mar. 15, 2010, available at http://www.csmonitor.com/USA/Politics/2010/0315/Obama-s-No-Child-Left-Behind-revise-a-little-more-flexibility.
293. Garrett, supra note 296.
294. The authors' hypothesis is that consequential accountability- defined as systems in which there are consequences tied to testing against standards-leads to gains in student achievement. A key aspect of consequential accountability is that the threat of consequences drives schools to higher levels of performance. Without consequences for 85% of schools, the Blueprint, therefore, takes away an essential element of any consequential accountability system by removing the incentives to strive for improvement in schools.
295. As a reminder, this provides that a failing school may, as an option for accountability, enact "any other major restructuring of the school's governance designed to produce major reform."
296. See Mead, supra note 51.
297. This is not to suggest that only sticks should be stronger; more carrots should be encouraged as well, and to the effect that the Blueprint adds carrots where there were only previously sticks, it should be applauded.