[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]





 KEEPING SCHOOLS SAFE - THE IMPLEMENTATION OF NO CHILD LEFT BEHIND'S 
               PERSISTENTLY DANGEROUS SCHOOLS PROVISION

=======================================================================

                             FIELD HEARING

                               before the

                    SUBCOMMITTEE ON EDUCATION REFORM

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                 September 29, 2003 in Denver, Colorado

                               __________

                           Serial No. 108-34

                               __________

  Printed for the use of the Committee on Education and the Workforce



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California
    Chairman                         Dale E. Kildee, Michigan
Cass Ballenger, North Carolina       Major R. Owens, New York
Peter Hoekstra, Michigan             Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon,           Robert E. Andrews, New Jersey
    California                       Lynn C. Woolsey, California
Michael N. Castle, Delaware          Ruben Hinojosa, Texas
Sam Johnson, Texas                   Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania     John F. Tierney, Massachusetts
Charlie Norwood, Georgia             Ron Kind, Wisconsin
Fred Upton, Michigan                 Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan           David Wu, Oregon
Jim DeMint, South Carolina           Rush D. Holt, New Jersey
Johnny Isakson, Georgia              Susan A. Davis, California
Judy Biggert, Illinois               Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania    Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio              Ed Case, Hawaii
Ric Keller, Florida                  Raul M. Grijalva, Arizona
Tom Osborne, Nebraska                Denise L. Majette, Georgia
Joe Wilson, South Carolina           Chris Van Hollen, Maryland
Tom Cole, Oklahoma                   Tim Ryan, Ohio
Jon C. Porter, Nevada                Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia

                    Paula Nowakowski, Staff Director
                 John Lawrence, Minority Staff Director
                                 ------                                

                    SUBCOMMITTEE ON EDUCATION REFORM

                 MICHAEL N. CASTLE, Delaware, Chairman

Tom Osborne, Nebraska, Vice          Lynn C. Woolsey, California
    Chairman                         Susan A. Davis, California
James C. Greenwood, Pennsylvania     Danny K. Davis, Illinois
Fred Upton, Michigan                 Ed Case, Hawaii
Vernon J. Ehlers, Michigan           Raul M. Grijalva, Arizona
Jim DeMint, South Carolina           Ron Kind, Wisconsin
Judy Biggert, Illinois               Dennis J. Kucinich, Ohio
Todd Russell Platts, Pennsylvania    Chris Van Hollen, Maryland
Ric Keller, Florida                  Denise L. Majette, Georgia
Joe Wilson, South Carolina           George Miller, California, ex 
Marilyn N. Musgrave, Colorado            officio
John A. Boehner, Ohio, ex officio


                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 29, 2003...............................     1

Statement of Members:
    Musgrave, Hon. Marilyn N., a Representative in Congress from 
      the State of Colorado......................................     3
        Prepared statement of....................................     4
    Osborne, Hon. Tom, a Representative in Congress from the 
      State of Nebraska..........................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Andrews, Senator John K. Jr., President of the Senate, 
      Colorado State Senate......................................    27
        Prepared statement of....................................    29
    Moloney, William J., Commissioner of Education, Colorado 
      Department of Education....................................     6
        Prepared statement of....................................     7
    Schaffer, Hon. Bob, President, Colorado Department of 
      Education..................................................    20
        Prepared statement of....................................    21
    Smith, David, Director of Prevention Initiatives, Colorado 
      Department of Education....................................     8
        Prepared statement of....................................    10
    Ware, Vicki, Parent, Denver, Colorado........................    30
        Prepared statement of....................................    30
    Zradicka, Gloria, Policy Analyst, Education Commission of the 
      States.....................................................    24
        Prepared statement of....................................    26
        Report submitted for the record, ``No Child Left Behind - 
          Persistently Dangerous School Criteria''...............    39

 
  KEEPING SCHOOLS SAFE - THE IMPLEMENTATION OF NO CHILD LEFT BEHIND'S 
                PERSISTENTLY DANGEROUS SCHOOLS PROVISION

                              ----------                              


                       Monday, September 29, 2003

                     U.S. House of Representatives

                    Subcommittee on Education Reform

                Committee on Education and the Workforce

                            Denver, Colorado

                              ----------                              

    The subcommittee met, pursuant to call, at 10 a.m., at the 
State Capitol Building, Old Supreme Court Chamber, Room 220, 
200 East Colfax Avenue, Denver Colorado, Hon. Tom Osborne 
presiding.
    Present: Representatives Osborne and Musgrave.
    Staff Present: Melanie L. Looney, Counsel and Josh Holly, 
Director of Media Affairs.
    Mr. Osborne. Good morning, everyone. A quorum being 
present, the Subcommittee on Education Reform and the Committee 
on Education and the Workforce will come to order. We're 
meeting today to hear testimony on the implementation of the No 
Child Left Behind's Persistently Dangerous Schools Provision. 
I'd like to begin by thanking those here at the Colorado State 
Capitol (inaudible). I appreciate your hospitality, and I'm 
very pleased to be here.
    We're ready to hear from our witnesses, but before I begin, 
I'm going to ask for the unanimous consent for the hearing 
record to remain open 14 days to allow member statements and 
other extraneous material referenced during the hearing to be 
submitted in the official hearing record. Without objection, so 
ordered.
    I'll now proceed with an opening statement.

  STATEMENT OF HON. TOM OSBORNE, A REPRESENTATIVE IN CONGRESS 
                   FORM THE STATE OF NEBRASKA

    Mr. Osborne. My name is Tom Osborne. I am the Vice Chairman 
of this subcommittee, and I represent Nebraska's third 
congressional district. On behalf of the Subcommittee on 
Education Reform, I would like to extend a warm welcome to 
everyone in the audience today. I would like to thank our 
distinguished panels for taking part in today's hearing, 
entitled, ``Keeping Schools Safe - The Implementation of No 
Child Left Behind's Persistently Dangerous Schools Provision.''
    Today's hearing will focus on an extremely important 
topic--the protection and safety of America's children. When 
Congress passed bipartisan ``No Child Left Behind Act'' on 
December 31, 2001, it had the well-being of its students in 
mind. In order to receive funding under this Act, states are 
required to identify schools that are ``persistently 
dangerous.'' Students who are enrolled at a school that has 
been identified by the state as being ``persistently 
dangerous,'' are subsequently given the option of transferring 
to a safe school within their local education agency.
    Ultimately, the requirements established by No Child Left 
Behind are intended to provide parents with both knowledge and 
options when it comes to the safety of their children. The 
provisions help parents feel secure that they are sending their 
children to safe, nonthreatening environments in which their 
children can learn and succeed.
    As we consider this issue, it is important to look at this 
issue from a number of perspectives. We will hear about why 
this provision was included. We will also hear from two of the 
state's schools' chiefs--actually one, I believe now--who is 
from the State of Colorado--on the implementation of this 
provision at the state level. One of our panelists will provide 
a broader view of what the other states are doing to implement 
this provision. Finally, we will hear from a state legislator 
and a parent on the impact of this provision and its 
implementation.
    Again, the topic at hand is of primary importance to all of 
us as we seek to ensure the safety and security of our nation's 
children. I look forward to hearing from our witnesses today.
    [The prepared statement of Mr. Osborne follows:]

 Statement of Hon. Tom Osborne, a Representative in Congress from the 
                           State of Nebraska

    Good morning.
    My name is Tom Osborne. I am the vice chairman of this subcommittee 
and I represent Nebraska's third congressional district. On behalf of 
the Subcommittee on Education Reform, I would like to extend a warm 
welcome to everyone in the audience today. I would like to thank our 
distinguished panels for taking part in today's hearing, entitled, 
Keeping Schools Safe - The Implementation of No Child Left Behind's 
Persistently Dangerous Schools Provision.
    Today's hearing will focus on an extremely important topic--the 
protection and safety of America's children. When Congress passed the 
bipartisan ``No Child Left Behind Act'' on December 13, 2001, it had 
the well-being of its students in mind. In order to receive funding 
under this Act, states are required to identify schools that are 
``persistently dangerous.'' Students who are enrolled at a school that 
has been identified, by the state, as being persistently dangerous, are 
subsequently given the option of transferring to a safe school within 
their local education agency.
    Ultimately, the requirements established by No Child Left Behind 
are intended to provide parents with both knowledge and options when it 
comes to the safety of their children. The provisions help parents feel 
secure that they are sending their children to safe, non-threatening 
environments in which their children can learn and succeed.
    As we consider this issue, it is important to look at this issue 
from a number of perspectives. We will hear about why this provision 
was included. We will also hear from two state school chiefs--one from 
my home state of Nebraska and one from here in Colorado--on the 
implementation of this provision at the state level. One of our 
panelists will provide a broader view of what the other states are 
doing to implement this provision. Finally, we will hear from a state 
legislator and a parent on the impact of this provision and its 
implementation.
    Again, the topic at hand is of primary importance to all of us as 
we seek to ensure the safety and security of our nation's children. I 
look forward to hearing from our witnesses today. At this time, I yield 
to my distinguished colleague, Representative Musgrave, for any opening 
comments she might have.
                                 ______
                                 
    Mr. Osborne. And at this time, I yield to my distinguished 
colleague, Representative Marilyn Musgrave, for any opening 
comments that she may have.

STATEMENT OF MARILYN N. MUSGRAVE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF COLORADO

    Mrs. Musgrave. Thank you. Good morning to all of you. It's 
like ``old home week'' to be back here at the State Capitol. 
And it's very good to see friends and family, I might add.
    I also am very delighted to have the opportunity to hold 
this hearing in our state capitol today. And, Congressman 
Osborne, I'd like to thank you very much for coming. I will not 
bring up the topic of football at all; that will not be 
mentioned today. And I'm just appreciative of the work that you 
are doing.
    I'm certainly glad that we're here today to focus on this 
extremely important topic. The safety of America's students 
should be one of our top priorities as a nation, and I am 
pleased that Congress included the ``persistently dangerous 
schools'' provision in the No Child Left Behind Act. As a 
former school board member, a teacher, and the mother of four 
grown children, I have spent many years working in our 
educational system and know the importance that a safe 
environment plays in a child's ability to learn. But not only 
is safety a priority due to the educational benefits it 
provides. Safety is a priority because in this country it is 
never reasonable nor necessary to send our children into 
dangerous environments.
    The ``persistently dangerous schools'' provision causes 
states to evaluate the safety of each school and notify parents 
when their children are attending a school found to be 
persistently dangerous. This provision makes it clear that the 
safety and well-being of our students is to be taken seriously. 
It provides parents with an educational option by allowing them 
to send children in such a school to another, safer school.
    Even in states like Colorado that offer public-school 
choice, this provision is important for two reasons. First, it 
focuses--it forces us to assess the quality of education we are 
providing by making sure each school meets a safety standard. 
Second, it empowers parents to make an informed decision 
regarding their child's education through the notification 
process.
    After a year to prepare for the implementation of this 
provision, we have just begun to hear back from the states 
regarding the policies they have established to define a 
``persistently dangerous school'' and how these policies are 
being implemented.
    No schools in Colorado were identified as ``persistently 
dangerous.'' I would like to commend the Department of 
Education for the steps it has taken to improve school safety 
in our state. However, the findings surprise me, and today I 
would like to learn more about the standards to ensure that 
they are an accurate reflection of school safety in Colorado.
    Colorado is not the only state to determine that there were 
no persistently dangerous schools in the state. Specifically, I 
find it interesting that 44 states--including Nebraska, Mr. 
Osborne--did not identify any schools as persistently 
dangerous. More incredulous was the finding that none of the 
public schools in the urban areas of Los Angeles, Chicago, 
Miami, Detroit, Cleveland, San Diego, Baltimore and even 
Washington, D.C. were determined to be persistently dangerous. 
These findings raise some major concerns.
    The finding in Los Angeles was particularly troubling with 
regard to Banning Senior High School near Los Angeles, because 
in the 2001-2002 school year it was the scene of 28 batteries, 
two assaults with a deadly weapon and three sex offenses; and 
this year an 18-year-old student died of a head injury hours 
after a fistfight in the school parking lot, and a fellow 
student was charged with murder.
    But safety is not just a concern in our nation's most 
metropolitan areas. In fact, last week a student brought a gun 
to Wheat Ridge High School in Colorado. All of us want to 
prevent another tragic situation like Columbine. It is 
essential that we accurately evaluate our schools before 
declaring they are not persistently dangerous.
    Today we have a wonderful opportunity to hear from leaders 
in the education policy, and I hope that we can determine where 
we are in the process of effectively implementing this 
provision and what steps we can take to better protect our 
students, better inform our parents and improve the quality of 
the learning environment for all students.
    I am here today to listen to our witnesses and learn what 
is being done at the state level to implement this provision 
and how its implementation is viewed by those this provision is 
intended to help. I would like to thank our distinguished 
witnesses for their participation today. I look forward to 
hearing from them and their insights.
    Mr. Chairman, I yield back my time.
    Mr. Osborne. Thank you, Mrs. Musgrave.
    [The prepared statement of Mrs. Musgrave follows:]

  Statement of Hon. Marilyn N. Musgrave, a Representative in Congress 
                       from the State of Colorado

    Good morning everyone and thank you for joining us today. I'm 
Marilyn Musgrave and, as Colorado's only representative on the House 
Education and Workforce Committee, I am delighted to have the 
opportunity to be in our state's capitol for this hearing today.
    First, I would like to thank Congressman Osborne for taking so much 
time to come to our state in order to make this hearing possible. I 
appreciate your willingness to join me in reviewing this very important 
issue for children across America. I would also like to personally 
welcome you to Colorado.
    Let me begin by saying that I am certainly glad that we are here 
today to focus on this extremely important topic. The safety of 
America's students should be one of our top priorities as a nation, and 
I am pleased that Congress included the ``persistently dangerous 
schools'' provision in the No Child Left Behind Act.
    As a former school board member, teacher and mother of four grown 
children, I have spent years working in our education system and know 
the importance that a safe environment plays in a child's ability to 
learn. But not only is safety a priority due to the educational 
benefits it provides, safety is a priority because in this country it 
is never reasonable nor necessary to send our children into dangerous 
environments.
    The ``persistently dangerous schools'' provision causes states to 
evaluate the safety of each school and notify parents when their 
children are attending a school found to be persistently dangerous. 
This provision makes it clear that the safety and well-being of 
students to must be taken seriously. It provides parents with 
educational options by allowing them to send children in such a school 
to another, safer school. Even in states like Colorado that offer 
public school choice, this provision is important for two reasons. 
First, it forces us to assess the quality of education we are providing 
by making sure each school meets a safety standard. Secondly, it 
empowers parents to make an informed decision regarding their child's 
education through the notification process.
    After a year to prepare for the implementation of this provision, 
we have just begun to hear back from the states regarding the policies 
they have established to define a ``persistently dangerous school'' and 
how those policies are being implemented.
    No schools in Colorado were identified as persistently dangerous. I 
would like to commend the Department for the steps it has taken to 
improve school safety in our state. However, the findings surprise me 
and today, I would like to learn more about the standards to ensure 
they are an accurate reflection of the school safety in Colorado.
    Colorado was not the only state to determine that there are no 
persistently dangerous schools in the state. Specifically, I find it 
interesting that 44 States, including Nebraska, did not identify any 
schools as persistently dangerous. More incredulous was the finding 
that none of the public schools in the urban areas of Los Angeles, 
Chicago, Miami, Detroit, Cleveland, San Diego, Baltimore and 
Washington, D.C. were determined to be persistently dangerous. These 
findings raise some major concerns.
    The finding in Los Angeles was particularly troubling with regard 
to Banning Senior High near Los Angeles which in the 2001-2002 school 
year was the scene of 28 batteries, two assaults with a deadly weapon 
and three sex offenses, and where this year an 18-year-old student died 
of head injuries hours after a fistfight in the school parking lot, and 
a fellow student was charged with murder.
    But safety is not just a concern in our nation's most metropolitan 
areas. In fact, last week a student brought a gun to Wheat Ridge High 
School in Colorado. All of us want to prevent another tragic situation 
like Columbine, therefore, it is essential that we accurately evaluate 
our schools before declaring they are not persistently dangerous.
    Today we have a wonderful opportunity to hear from leaders in 
education policy and I hope that we can determine where we are in the 
process of effectively implementing this provision and what steps we 
can take to better protect our students, better inform our parents and 
improve the quality of the learning environment for all students.
    I am here today to listen to our witnesses and learn what is being 
done at the state level to implement this provision and how its 
implementation is viewed by those this provision is intended to help. I 
would like to thank our distinguished witnesses for their participation 
today. I look forward to hearing from them and their insights. And with 
that Mr. Chairman, I yield back my time.
                                 ______
                                 
    Mr. Osborne. Just an additional comment. We know that out 
of 50 states only 6 have identified any schools that are 
unsafe. And of those 6 states there are 52 schools. And I 
believe 28 of those 52 come from Pennsylvania; 27 of the 28 in 
Pennsylvania come from Philadelphia. So obviously, we have a 
wide range of what people are determining ``unsafe'' and what 
they aren't.
    And I've been in Banning High School and in many of the 
high schools around the country and realize the disparity and 
the different types of schools that we're dealing with.
    So anyway, we appreciate the witnesses coming this morning.
    Without any further comments, I'd like to begin and call 
the gentlewoman from Colorado to introduce the witnesses, and 
we'll proceed after that.
    Mrs. Musgrave. First of all, there's Dr. William J. Moloney 
as our Commissioner of Education in Colorado. When I was in the 
legislature--I have had a great deal of respect for you and I 
certainly enjoyed working with you. So I'm happy to have you 
here today.
    Previously, Dr. Moloney served as the superintendent of 
schools for the Calvert County Public School District in 
Maryland. Prior to that, he was superintendent of schools in 
the Easton Area School District of Pennsylvania. Currently, Dr. 
Moloney serves as a member of the Governor's cabinet and 
secretary to the state board of education and as an advisor to 
the general assembly.
    Also on the distinguished panel today, we have Mr. David 
Smith. I have worked with him previously and have a great deal 
of respect for him also. He is the director of Prevention 
Initiatives for the Colorado Department of Education, and he 
served on the committee that created Colorado's definition of a 
``persistently dangerous school.''
    Prior to this, Mr. Smith was the supervisor of the Colorado 
Preschool Project and also the Dropout Prevention Project for 
the Colorado Department of Education. He currently assists 
local communities in developing an integrated approach to 
serving high-risk students. And it's good to have you here 
today.
    Mr. Osborne. Thank you, Mrs. Musgrave.
    And I would like to ask the witnesses to limit their 
statements to 5 minutes--which is very difficult in political 
offices to limit it to 5 minutes, but we would appreciate that. 
Your entire testimony will be included in the official hearing 
record.
    And so, Dr. Moloney, we thank you for coming this morning, 
and we will begin with you.

  STATEMENT OF WILLIAM J. MOLONEY, COMMISSIONER OF EDUCATION, 
                COLORADO DEPARTMENT OF EDUCATION

    Dr. Moloney. Thank you very much, Chairman Osborne. And 
it's good to see you again, Congressman Musgrave, bringing back 
recollections of shared values and projects when you were more 
frequently beneath the Golden Dome here.
    Let me just preface my remarks by saying--speaking of the 
importance of the subject which we're going to address today. 
Thirty-eight years ago, I was a young congressional intern. I 
was present for the passage of the Elementary and Secondary 
Education Act of 1965. As a school administrator in six states, 
I have been intimately connected with the implementation of 
this for most of those 38 years. I think it's fair to say, as 
Congressman Boehner has pointed out, that there were some 
things that were left to be desired as to how well it turned 
out, particularly when Congress began to look at what had 
happened with the reauthorization of 1994.
    Another hat I wear is as Chairman of the Education Leaders 
Council--a group, I believe, known to you for its strong 
commitment to reform and playing a very key and supportive role 
to Secretary Paige in the implementation of the No Child Left 
Behind Act. In fact, this week before last, I was honored to 
share a press conference with Senator Bill Frist in Nashville 
defending No Child Left Behind from its legion of critics. I 
would just say of that, that probably the best evidence to be 
found that this law that you passed is making a difference is 
in fact the criticism that it received. And it's our strong 
hope here in Colorado--and I think we're all friends for reform 
across the country--that it would stay the course.
    Understandably, in the passage of such a monumental 
statute--the most important Federal education legislation 
probably in the history of the republic--there are elements of 
compromise, which are inevitable--in fact, a healthy part of 
the process. I was honored to testify before the House 
Education and Workforce Committee more than once at a time when 
our Congressman Tancredo and Congressman Musgrave's 
predecessor, Congressman Chaif, who were--were on that panel.
    We in Colorado relative to No Child Left Behind--in 
general--and ``persistently dangerous schools''--in 
particular--have insisted on two things: One, the cause is so 
great and the end so worthy that the strongest good-faith 
effort must be made. Criticism of the law before the race is 
even begun will have the most deleterious effect. In working 
closely with our minority community here in Colorado, our 
Closing the Learning Gap Coalition, which is headed by the 
senior members of the republican and democratic party in the 
state, Governor Owens, and Attorney General Salazar--one thing 
we've been very much aware of--and that is an apprehension 
among those who represent our most vulnerable children--that in 
fact the voices of criticism would say: This is too hard. We 
can't do it. We can't get there. That must not be allowed.
    The second part of our approach to this has been our 
recognition that no statute is perfect--certainly not one of 
the vast scope of No Child Left Behind--and that as with all 
such statutes, No Child Left Behind will evolve over time in 
the interest of meeting its most admirable goals. When we 
looked at No Child Left Behind and the ``persistently dangerous 
school'' aspect, we took literally what the law said, which 
indicated that each state had to work this out by the best 
lines available to them. There was not a preconception or a 
notion that we must strive for a result that would make us look 
good or avoid legislative intent, but rather to make a good-
faith effort.
    As I think was indicated by Congressman Musgrave's remarks, 
like 43 other states we reached a result that very candidly 
looked a little peculiar in the eyes of many onlookers. Many of 
those onlookers, who were anything but friendly to the 
legislation, took this occasion to say, ``Ah-hah.'' One 
commentator among that group said, ``See? See? It's a farce.'' 
And what is disturbing about that is that a good-faith effort, 
let's say, made by people like those of us in Colorado, should 
be used as a club to beat the purposes and the prospects of 
this piece of legislation.
    So we continue to, as Mr. Smith will make clear, soldier on 
in this regard. As I think we all are aware--and this state 
suffered the horrendous tragedy of Columbine--safety in schools 
is not a cause to which we are indifferent. So if there are 
disagreements as to the implementation, they're perhaps 
disagreements that will require some adaptation on our part and 
perhaps also some adaptation to bring more clear and specific 
the intent of Congress.
    So I'll stop there and prepare to entertain any questions 
you have either before or after Mr. Smith's remarks. Thank you.
    Mr. Osborne. Thank you very much, Dr. Moloney.
    [The prepared statement of Dr. Moloney follows:]

 Statement of William J. Moloney, Commissioner of Education, Colorado 
                        Department of Education

    Chairman Osborne, on behalf of the Colorado State Board of 
Education I wish to extend a warm welcome to Colorado. My name is 
William J. Moloney and I am the Commissioner of Education for Colorado.
    The issue of safe schools where children and youth can achieve high 
academic standards is central to our mission. We take the challenge to 
identify any school in our state that is persistently dangerous for our 
students as serious work. We understand the importance of providing 
parents with accurate information so that they can make wise choices 
for their children.
    Quite frankly, we have taken this commitment to assure that schools 
are a safe place for students to learn, quite seriously, long before 
the No Child Left Behind legislation. Our Colorado legislature has a 
history of funding services that focus on students who engage in 
behavior that is considered to be dangerous to their fellow students. 
Dangerous behavior results in expulsion. We have model programs in our 
state that focus on the expelled student in order to prevent further 
violence and disruption to the classroom.
    We are here today to respond to your request for information about 
the process that Colorado utilized to comply with the requirements of 
No Child Left Behind. To that end I have asked Dave Smith from the 
Colorado Department of Education to outline for you how we developed 
our criteria. Dave was a member of a team of people who worked on this 
issue and will be able to respond directly to you request.
    I look forward to responding to any questions that you may have. 
Again, welcome to Colorado.
                                 ______
                                 
    Mr. Osborne. We will hear testimony from both, and then we 
will address a few questions to you.
    And so, Mr. Smith, why don't you go ahead and give your 
testimony at this time.

 STATEMENT OF DAVID SMITH, DIRECTOR OF PREVENTION INITIATIVES, 
                COLORADO DEPARTMENT OF EDUCATION

    Mr. Smith. Chairman Osborne and Representative Musgrave, 
welcome to Colorado--welcome back.
    When faced with the charge of defining ``persistently 
dangerous schools,'' the first step we took in the Colorado 
Department of Education was to form a Safe Schools Committee. 
The legislation required us to develop this definition in 
consultation with local school districts. We developed a 
process that actually increased the input to other people 
within the educational community.
    On that committee the following roles were represented: A 
president of a local, rural school board; an executive director 
of student services from a suburban school district; a 
representative from the Colorado Association of School 
Executives; a principal from an alternative school serving both 
rural and city areas--Greeley; a high school counselor from an 
urban school district; and the educational-policy analyst from 
the Governor's office; a representative of the Colorado 
Congress of Parents and Teachers, and a representative from the 
Colorado Association of School Boards. The Department of 
Education staffed this committee.
    When the committee convened, it took a look at the charge 
of the legislation, and it took a look at the data that was 
already available around suspension, expulsion, drug offenses--
the kind of data that we already collect--and made it available 
on the report cards that each individual school must issue to 
the community and to their parents. So the data was there, and 
it existed. And because we were collecting existing data rather 
than new data, in order to be able to look at 2 years' worth of 
data, we had to look at data that was already present in our 
system in order to be able to look at the second year to get 
the 2-year qualification of a ``persistently dangerous.'' That 
was the purpose of those definitions.
    The committee itself decided to support the expansion of 
even their involvement. To meet that end, we held a 1-day 
meeting that included parents, students, law enforcement 
officers, principals, teachers, local school board members, the 
executive director of the regional office of the U.S. 
Department of Education, school counselors, and local safe and 
drug-free schools and community coordinators. All were invited 
for a full-day meeting to provide input into the definition of 
``persistently dangerous school.'' That day primarily was like 
small groups facilitated by people other than people on the 
committee in order to keep the process fair and impartial. The 
outcome of that particular day was to come up with a set of 
principles to guide us in the actual definition.
    The kinds of things we heard that day include: A value of 
identifying schools that were truly and ``persistently 
dangerous''--as opposed to schools where some unsafe behaviors 
occur but overall are basically safe; a desire to direct more 
assistance toward schools in the greatest need of addressing 
school-safety issues provided within the resources by the Act; 
the need for the data to be objective; the need to use 
indicator data that was already collected by CDE in order to 
notify schools by the 2003/2004 school year if they are 
potentially identifiable to be ``persistently dangerous''; the 
desire to create a system that encourages more accurate 
reporting rather than dealing with discipline problems that 
don't necessarily rise to the level of danger to self and 
others.
    Utilizing those principles, the following outcomes 
occurred: One, the state board adopted a policy on victims of 
violent crime. Essentially that policy gave parents the right--
if any of these violent crimes which are defined in my 
testimony--and in the interest of time, I'll skip over those--
but if any of those things occurred within the school, the 
parent would not have a way (inaudible). In other words, those 
incidences rose to a level so serious that parents could choose 
at that point to make their own determination if the school is 
unsafe and move their child or youth.
    Part two, the definition of ``persistently dangerous 
school.'' The definition was arrived at by looking over some 
things that I had mentioned earlier that's already on a 
``student report card.'' Those things include: ``alcohol 
violations, drug violations, assaults/fights, robberies, and 
'other' felonies as defined by the Automatic Data Exchange''; 
expulsions for firearms per the Gun-Free Schools Act; and the 
third component was the number of reports to the Department of 
Education of school employees engaged in unlawful behavior, as 
required by the State Board of Education Rules.
    With that, we decided the incidence rate based upon the 
population of students in schools. Essentially, the incidence 
rate would require 15 percent of the students to engage in the 
described behaviors. And the way that I most--it's most helpful 
to me to understand is that there would have to be 180 
incidences for a school of 900 to 1,199, and that would be 
approximately 1 day.
    The reason for those--and the most problematic in this 
whole process for us in our discussions (inaudible) with a 
larger community was the term ``persistently dangerous.'' That 
word assumes--or actually taken from Webster's dictionary--
means ``continuous and ongoing.''
    In Colorado, when we ran--we set the criteria. It was 
approved by the board. We did our first data run to see how 
many schools in fact would qualify. Based on that data run, we 
had 20 schools that would qualify as ``persistently dangerous'' 
under that criteria--that outline.
    Mr. Osborne. Mr. Smith, thank you. We've run out of time, 
so we'll begin the questioning at this point. And I'm sure 
you'll have a chance to amplify some of the points that you're 
bringing up at a later time.
    [The prepared statement of Mr. Smith follows:]

Statement of David B. Smith, Director, Prevention Initiatives, Colorado 
                        Department of Education

    Good morning Chairman Osborne. My name is David Smith and I am with 
the Colorado Department of Education. My official title is Director of 
Prevention Initiatives. In response to your request I will be 
addressing the process that the Colorado Department of Education (CDE) 
utilized in developing persistently dangerous schools criteria as 
required by the No Child Left Behind Act. My testimony will include the 
definition that was arrived at through this process and the subsequent 
findings based upon data submitted by local school districts to the 
department.
    The No Child Left Behind Act of 2001 required each state to 
identify a method for determining a persistently dangerous public 
school. The first step in our process was to establish a Safe Schools 
Committee. Members of this committee represented the following roles: a 
president of a local, rural school board (Buffalo School Board), an 
executive director of student services from a suburban school district 
(Lewis-Palmer), a representative from the Colorado Association of 
School Executives (CASE), a principal from an alternative school 
serving students from both rural and city areas (Greeley), a high 
school counselor from an urban school district (Denver), the 
educational policy analyst from the governor's office, a representative 
from the Colorado Congress of Parents and Teachers and a representative 
from the Colorado Association of School Boards (CASB). The committee 
was staffed by CDE members who represented No Child Left Behind and 
Safe and Drug Free Schools.
    The Safe School Committee began meeting in August of 2002. It was 
the role of CDE to provide the committee with information requested 
that included data on expulsions and suspensions, data collected from 
schools per the Safe Schools Act and safe school data sent to parent's 
homes by way of the school accountability reports. The committee helped 
the department staff develop a Safe Schools Forum in order to seek 
broader input from schools and communities from throughout Colorado. 
This was a full day meeting held in October of 2002. Approximately 60 
people attended this meeting and included the following representation: 
students, law enforcement officers, principals, parents, teachers, 
local school board members, the executive director of the regional 
office of the U.S. Department of Education, school counselors, and 
local safe and drug free schools and communities coordinators. The 
majority of the day was spent in small group sessions facilitated by 
independent volunteers. Department staff and members of the committee 
were intentionally excluded from the discussions in order to keep the 
input from local representatives as objective as possible. This allowed 
committee members to hear from a broad spectrum of people on issues 
related to persistently dangerous schools. The department absorbed the 
cost of this Forum as well as committee member participation over 
several months which amounted to $7,046.
    The outcome of the Forum included many suggestions about school 
safety as it relates to persistently dangerous schools. In addition to 
taking these suggestions under consideration, the Safe School committee 
also utilized guiding principles as follows:
     A value of identifying schools that are truly and 
persistently dangerous as opposed to schools where some unsafe 
behaviors occur, but overall are basically safe.
     A desire to direct more assistance toward schools in 
greatest need of addressing school safety issues within resources 
provided by the Act.
     The need for data to be objective.
     The need for the indicators to be measurable and based on 
standardized definitions.
     The need to use indicator data that is already collected 
by CDE in order to notify schools by the 2003/2004 school year if they 
are potentially identifiable as persistently dangerous.
     The desire to create a system that encourages more 
accurate reporting rather than dealing with disciplinary problems that 
don't rise to the level of dangerous to self or others.
    The Safe School Committee then set about developing criteria to be 
utilized in identifying a persistently dangerous school. After much 
discussion and several drafts the following Safe School Choice Option 
policy was adopted by the Colorado State Board of Education in January 
of 2003:

                Part One: Victims of Crimes of Violence

    Any student who becomes a victim of a violent criminal offense 
while in or on the grounds of a public elementary school or secondary 
school that the student attends, shall be allowed to attend an 
available safe public elementary school or secondary school within the 
school district.
Crimes of Violence
    Crimes of violence, as defined by Colorado Revised Statute 18-1.3-
406(2)(a)(I) and (II), are those crimes that have been committed, 
conspired to be committed, or attempted to be committed by a person 
during which, or in the immediate flight there from the person:
    A Used, or possessed and threatened the use of, a deadly weapon; 
or
    B Caused serious bodily injury or death to any other person except 
another participant.
    Crimes of violence are:
    (A) Any crime against an ``at risk'' adult or ``at risk'' 
juvenile:
    (B) Murder;
    (C) First or second degree assault;
    (D) Kidnapping;
    (E) Sexual assault;
    (F) Aggravated robbery;
    (G) First degree arson;
    (H) First degree burglary;
    (I) Escape(from custody or confinement); or
    (J) Criminal extortion.
    ``Crime of violence'' also means any felonious unlawful sexual 
offense in which the defendant caused bodily injury to the victim or in 
which the defendant used threat, intimidation, or force against the 
victim.
    In addition, local school must follow the prohibitions regarding 
the enrollment of expelled students as set forth in CRS 22-33-106(4). 
This law requires that a student who has been expelled must be 
prohibited from enrolling or re-enrolling in the same school in which 
the victim of the offense or member of the victim's immediate family is 
enrolled.

                Part Two: Persistently Dangerous School

    Any student who attends a persistently dangerous public elementary 
school or secondary school, as determined by the State in consultation 
with a representative sample of local educational agencies, shall be 
allowed to attend an available safe public elementary school or 
secondary school within the school district.
Persistently Dangerous School
    A school is determined to be ``persistently dangerous'' if the 
total number of incidents annually reported to the Colorado Department 
of Education for:
    (A) alcohol violations, drug violations, assaults/fights, 
robberies, and ``other'' felonies as defined by the Automated Data 
Exchange;
    (B) expulsions for firearms per the Gun-Free Schools Act; and
    (C) the number of reports to CDE of school employees engaging in 
unlawful behavior, as required by State Board of Education Rules 1-CCR-
301-37, 2260.5-R-15.05.
    exceed the following numbers per student enrollment per year for 
two consecutive years, beginning with the 2001/2002 school year:
    45 for fewer than 299 students
    90 for 300 to 599 students
    135 for 600 to 899 students
    180 for 900 to 1,199 students
    225 for 1,200 to1499 students
    270 for 1,500 to 1799 students
    315 for 1800 to 2099 students
    360 or more for 2,100 or more students

Procedures for Districts and Schools
    Data will be assessed annually. The Colorado Department of 
Education will notify districts and schools after the first year, if a 
school has the potential of being identified as persistently dangerous 
following the second year. When determined to be persistently 
dangerous, districts must notify parents about their option(s) for 
transferring students and complete the transfer(s) upon request.

Identification of schools
    The Colorado State Board of Education approved the policy in 
January 2003. The first data run to determine schools that met year one 
criteria was completed in May of 2003. As a result 20 schools were 
identified as meeting the criteria for year one. In accordance with 
state policy those schools were notified. Year two data from the 2002-
2003 school year was submitted to the department on June 30, 2003. The 
data run was completed in August of 2003. None of the 20 schools met 
the criteria for year two. The primary reason for this was the decline 
in numbers under the category of assault/fights. Schools indicated that 
they had been reporting all fights including those that did not meet 
the state's definition. When using the state definition for the second 
year of analysis the number of assaults declined.
    This concludes my testimony. Thank you for your time and attention. 
I look forward to responding to any questions that you may have.
                                 ______
                                 
    Mr. Osborne. So, first of all, Dr. Moloney, we want to 
thank you for being here today. And I'd like to know the 
process that Colorado used to build on its definition of 
``persistently dangerous school''--and Mr. Smith addressed some 
of these issues--and whether that process included a review of 
school crime statistics and input from parents. So can you 
explain that to us, because we think the parental involvement 
is certainly a big part of this, too.
    And one of the real concerns that I have is that--and maybe 
you can correct me if I'm wrong--a school of 300 students, if 
they had incidents at the rate that you would feel they would 
need to have over a 2-year period, this means that literally 
one out of six students would have been assaulted or involved 
in some type of serious incident--which seems pretty high to 
me--and at that level of involvement and still to be called a 
``safe school.'' You know, I would not feel good if I was 
sending a child to a school with those kinds of odds.
    So anyway, if--it's kind of a rambling question, but if you 
could address that to your ability.
    Dr. Moloney. OK. I'll try not to be too rambling in my 
answer.
    Mr. Osborne. Good.
    Dr. Moloney. At the heart of this problem--and always has--
is the unreliability of statistics. I well recall, as a high 
school principal, often being accused of running a, let's say, 
``nonsafe'' school because I had such a high suspension rate. I 
was at pains to contradict that judgment by saying, No, it is 
precisely because of our strictness, our careful recordkeeping, 
and our follow-up that this is a very safe school.
    The reality most recently validated, when we introduced a 
``state report card,'' is that sometimes the schools that on 
paper look the safest are the most dangerous, and the ones that 
on paper look the most dangerous are the safest. This issue of 
``how do you define things'' has plagued us yearlong.
    Mr. Osborne. Could you explain that a little more 
thoroughly to me--``the most dangerous being the safest on 
paper.''
    Dr. Moloney. Well, let me--my deputy superintendent in 
Rochester, New York--(inaudible) is well known to us--and he 
said, Building administrators knew that if there were 
statistics that made them look bad--statistics which might get 
in the media--that might negatively impact their careers. So 
there was a tendency--a very human tendency to downplay what 
was going on. And so notoriety would not come to some 
enterprising reporter or an angry parent who--you know--ripped 
the mask off of that circumstance.
    Conversely, we had folks who did the opposite; who came as 
close to a zero-tolerance policy as they could. And that meant 
reporting a lot of fights, a lot of suspensions, a lot of 
expulsions. But these were the schools that parents wanted 
their children in, because they knew that there was an 
administration who was very serious.
    So there was a contrast between what the statistics say and 
what is the reality, and that is what our committee under Mr. 
Smith's direction had to wrestle with. And, of course, it 
creates a problem of perception, and it creates problems for 
folks in your circumstance who have to kind of look at this 
mound of paper from 50 states and say: What is going on here?
    Mr. Osborne. So you're saying one of the big problems is 
reliability of reporting, building by building, and that there 
doesn't seem to be any uniform standard in that regard?
    Dr. Moloney. Mr. Smith, would you care to comment on that?
    Mr. Smith. Yes. I'd like to add to Dr. Moloney's remarks. 
One of the things we really struggled with, as the head 
committee, is to engage in any of these behaviors that would 
become in our schools as a result of an expulsion. So if the 
student is expelled from school, they're no longer in that 
environment. And to get into the notion of ``persistent,'' 
somebody else would have to step up and engage in that same 
kind of behavior in order to make the school a ``persistent'' 
environment. They would also be expelled, and so somebody else 
would have to step up. That's where the whole notion of 
``persistence'' begins to come into play.
    In Colorado we paid very close attention to the ``safe 
schools'' option. And we've actually expelled kids, and the 
general assembly has created programs for students who are 
expelled so that they're not just churned into the community, 
but they go on and get services and support. So there's a real 
focus on those students who are engaged in these violent-
potentially leveled behaviors. So that was sort of the kind of 
thing that we were faced with.
    Mr. Osborne. OK. So you're saying that since students are 
expelled for certain types of behavior, that then the 
``persistent'' definition sometimes becomes removed because 
those students were reported? Is that what you're saying?
    Mr. Smith. Well, in order for the school environment to be 
``persistent,'' that student is no longer there, somebody else 
would have to engage in that behavior. And that's what we were 
looking at in terms of one of the rates. If a student engaged 
in assaulting another student and caused bodily injury, they're 
expelled from school. As Commissioner Moloney indicated, that 
would show up as an expulsion; having shown up as an assault 
from that school, the parents may be alarmed. But the fact of 
the matter is that student is no longer in that school. And 
that's the dilemma that's posed by statistics.
    Mr. Osborne. OK. Well, I understand some of what you're 
saying. And at this time, I think my 5 minutes is up.
    Mrs. Musgrave, would you care to continue?
    Mrs. Musgrave. Thank you, Mr. Osborne.
    Well, I don't think I ever heard an answer to the question: 
In a school with an enrollment of 300 students, there would 
have to be 90 violations in a school year before that school 
would be considered ``persistently dangerous.'' And I just want 
to know from the both of you: Is that a standard that is an 
accurate indicator of how safe our schools are in Colorado? I 
mean, that could be one every other day in a school year. Is 
that an accurate indicator that our schools are safe?--I mean, 
300 violations?
    Dr. Moloney. I would defer to Mr. Smith, and then I will 
follow up on his response to it more specifically.
    Mr. Smith. My (inaudible), again, was that whole idea of 
``persistence.'' You know, that--the scenario that you 
described of ``every other day'' would be if somebody in that 
school environment--somebody making it dangerous ``every other 
day''--``persistently dangerous.'' And that, again, is 
something that we struggle with.
    When you look at the notion of ``persistently dangerous,'' 
that means--that would indicate to me as a parent and to other 
parents that on a regular basis that school is a dangerous 
place for my child to be.
    Mrs. Musgrave. You know, I think an adult like myself going 
into a work environment--and I'm thinking if I were applying 
for a job and I read these statistics, what I would think about 
going to work at a place like that. And then I think as a young 
person, as a minor going into an environment like that, what 
they're like.
    Some children are very slight in build. Some children are 
very needy by nature. They're more likely to be a target. And I 
wonder what they feel like--what their gut feels like when they 
go to a school that has 300 violations a year. That really hits 
home with me.
    Dr. Moloney, you worked in Pennsylvania. And we look at 
Pennsylvania standards; Colorado standards are much lower. 
Could you comment on that? Why is there such a difference?
    Dr. Moloney. Well, I cannot speak to the criteria that each 
state adopted. I can say something about the realities. Having 
worked there for 9 years, I'm quite familiar with realities. I 
would strongly submit that the standards for school management 
here in Colorado are much stronger. And that is not out of any, 
you know, superior wisdom on our part, but it is a very 
different demographic knowing Philadelphia--if you're in a 
Pittsburgh school--very well, being in an excellent position to 
compare them with Denver and Pueblo or to some of our--our 
cities. If they appear better in this measurement, I certainly 
commend my colleague, Charles Zogby, who was there once we put 
it together.
    Mrs. Musgrave. Well, Dr. Moloney, in a student body of 
2,000 in Pennsylvania, only 20 violations are permitted; in 
Colorado a student body of the same size could have 360 
violations or more. So I mean, there is a stark difference 
between Colorado and Pennsylvania. I wonder how a parent 
responds to that. I think I know.
    Dr. Moloney. I think part of this--an easy resolution of 
this would have been if a national standard had been set that 
required every state to adhere to the same standard. This would 
have resulted in much greater clarity and much greater 
consistency. But for reasons I'm sure you understand, there was 
a desire to give flexibility to the states; and when you do 
that, you are at risk for 50 different approaches, which is 
characteristic of how this country approaches school reform. We 
act as if we have 50 sovereign nations. It's astonishing to the 
rest of the industrial world, but it is germane to, you know, 
what we're doing.
    Mrs. Musgrave. Well, I think that the important thing to me 
is that parents get accurate information so they can make a 
decision for their child. And when you see these kinds of 
disparities between the states, you know, I wonder if that's 
appropriate. Could you tell me what incentives or consequences 
you were implementing to really encourage honest reporting?
    In specific, you know, when we may have administrators that 
would either overreport or some that underreport, I'd just like 
to say I would like to err on the side of giving the parents 
the most information, perhaps even if it might be a little 
alarmist at times. So what incentives--and either one of you 
can answer that--are we giving these individuals to assure 
honest reporting?
    Dr. Moloney. I think that goal is certainly desirable. It 
is indeed a disservice to a parent moving from Philadelphia to 
Denver trying to determine what the realities are when they 
look at these standards. It would be much more helpful to that 
parent if there was a reliable standard set at a national 
level. That parent would never be satisfied as long as we allow 
50 different approaches.
    I would prefer--just as I did when I was a school 
administrator--to err on the side of strictness. Every poll 
we've ever taken says parents rate discipline and its variance 
as the No. 1 concern. More basic than the basics is: Does your 
child come home from school in one piece? And we're as 
committed to that as anyone. But you're right, the system does 
not lend itself to that result.
    Mrs. Musgrave. Thank you. I believe my time is up.
    Mr. Osborne. OK. We'll entertain one more round of 
questions with you gentlemen, if that will be OK with you.
    Just a couple of thoughts. I've been in (inaudible) Denver 
high schools. I been in quite a few of the Philadelphia high 
schools. And I can tell you, from my experience, that there is 
a fair amount of similarity; some dissimilarities. But still, I 
think we can say that this area of the country is removed from 
some of the problems that we see in Philadelphia, and, 
obviously, the assessment is quite different in those two 
areas.
    It seems like we're hung up on the word ``persistent.'' And 
I would assume that if one out of every six children were the 
victim of some type of assault and violence every 2 years in a 
school, most parents would say that's too persistent.
    And in terms of a national standard, we understand that 
appeal; but we also understand that most of the people at the 
state level in education have resisted strenuously a national 
standard. They wanted to have the state set the testing 
standards; and as you know, there are differences state by 
state.
    So I think what the people in the Education Committee and 
the House at least felt was that we would like to give each 
state as much autonomy as possible. But also when you look at 
the results here, 46 states say they have no unsafe schools. 
Obviously, common sense and logic is this is somewhat 
incredulous. And then to have one or two states with almost all 
the schools labeled as ``unsafe'' doesn't seem logical. So it 
may be that a national standard will come into being.
    And then we're thrown back on the reliability of the 
reporting at the school level. As you mentioned, that's a 
problem. And I can see that every school wants to be considered 
safe. And so we're certainly concerned about reliability and 
integrity at the individual school building, too, which I would 
assume you folks would be more clearly attuned to sitting in 
Washington.
    So anyway, those are just some of my thoughts. And I would 
like to ask one more question and do this question for each of 
you. When Colorado implemented their current provision, did you 
hear from parents or teachers as to whether this definition met 
or did not meet their expectations and whether it provided them 
with the information they needed as to the safety of their 
children? So, was there input from parents and teachers once 
you had decided on your standard?
    Mr. Smith. Yes, there was input. The PTA (inaudible) 
Standard America Committee, so they approved--you know, they 
saw the standards. Parents were quoted in the papers saying 
they were not surprised that there were no ``persistently 
dangerous'' schools in Colorado, because they didn't feel that 
the school that their child attended was dangerous. I did not 
receive any phone calls directly from parents saying they--or 
any kind of a letter or anything indicating that they disagreed 
with this criteria. Although I will add that we strongly 
support providing parents with accurate data so that they can 
draw the line themselves as to whether they deem it to be a 
safe or an unsafe school.
    So I really want to emphasize that in Colorado, providing 
that information on the ``report card''--one assault may be too 
many for one parent, and they may want to move their child 
then. So I think the issue is providing accurate information to 
the parents. I think that that's a principle that we absolutely 
need to stick with, so that the parents themselves can look at 
that data and then they can decide. In Colorado they can move 
their child (inaudible) without a ``persistently dangerous 
school'' label. They can move their child if there is one fight 
and their child is involved in it and they deem that school to 
be unsafe, they can move their child then.
    Mr. Osborne. So you feel that you're willing to or are 
providing the information to the parents at the present time?
    Mr. Smith. I'm not sure that this information has gone out 
specifically to parents. It's been in the press that, you know, 
our legislature will require a school labeled as ``persistently 
dangerous'' to notify parents. That is one of the requirements 
of the legislation.
    Mr. Osborne. So my question to both of you is: Do you have 
that in process where you are going to notify the parents of 
each school how many incidents have occurred at that school on 
a given year or a 2-year period?
    Mr. Smith. It's on the report card.
    Dr. Moloney. OK. I could offer a thought on that of a 
practical nature. When we interact with our 178 school 
districts and 1700 schools, and particularly when we assert 
certain constraints of time, we do not interact with them 
directly. If we (inaudible), we suggest that it would be in a 
(inaudible) communication. We operate through organizations, as 
every state does.
    Now, with parents, other than general citizenry, this is 
the largest and most diverse group of folks who are involved, 
and one can very legitimately raise the question: Which parents 
do you communicate with, and is the organization sufficient? 
Had we more time or resource or whatever, we might have cast 
that net more widely. But as these processes go, it was a--I 
think, let's say, a very thorough kind of outreach; but it 
still leaves, as I think we all know, parents' differences of 
opinion. Organizations and individual parents are often in 
somewhat different places. But as Mr. Smith suggests, at the 
end of the day, parents are fairly shrewd consumers. Maybe 
their sources of information are not entirely scientific, but 
they know what they like and they know what they want and have 
ways of kind of tapping into this. But it's an imperfect 
process.
    Thank you.
    Mr. Osborne. Mrs. Musgrave.
    Mrs. Musgrave. Thank you, Mr. Osborne. I would just like to 
say that when I heard about the makeup of the committee, you 
know, it was a butcher, baker, and a candlestick maker; but I 
tell you that committee should have had a lot more parental 
input.
    Granted we need administrators, we need folks from law 
enforcement and the department and all of that, but really the 
heart of this whole issue is letting the parents know about the 
environment in the schools as with regard to safety.
    I just have a question for either one of you in regard to 
the 20 schools in Colorado that were defined after 1 year as 
``persistently dangerous schools.'' What happened with that? 
When they got that--that label, so to speak--what happened in 
those schools? Were there consequences? Were there changes? 
Could you respond to that, please?
    Dr. Moloney. I think I could help you with a 
generalization. We talked directly with the superintendents and 
the principals involved, as is the purpose of this legislation. 
This got their attention in a large way. I think some of the 
circumstances you run into here, very likely you'll run into 
with testing. In very small schools you find funny things 
happen with numbers. They look like a fever chart. We were not 
surprised with the disproportionality with middle schools.
    But to specifically answer your question, I think they did 
indeed pay very close attention to that. And I think others on 
the edge of that bubble, so to speak, did also.
    Mrs. Musgrave. But what did they do, Dr. Moloney? I mean, 
did they report less fights? What did they do to respond to the 
``persistently dangerous'' label that they had received?
    Mr. Smith. On the Automatic Data Exchange--which defines 
how school districts are to report the data that then goes on 
the school ``report card''--the schools were not reading that 
definition closely enough, I think. But what we heard and got 
back from the school principals is that when you look at the 
definition, it said that in order to record in that category a 
fight had to arise to a second degree assault, meaning that 
there had to be bodily injury.
    Their response was, we've been reporting any scuffle on the 
playground, a shoving in the lockers--we've been reporting that 
as an assault, then. And that was supposed to be reported in 
the other category, not in the ``assault/fight'' category. So 
what they did is pay (inaudible) close attention to the state 
definition than the Automatic Data Exchange. And what you saw 
from this is a rise in the other violations and more accurate 
reporting of ``assaults'' in that category.
    Mrs. Musgrave. Well, what procedures are in place right now 
to assure that all dangerous incidents are reported?
    Mr. Smith. Well my response to that is the integrity of the 
data is only as good as the integrity of the people reporting 
it. I don't have any reason to believe that people are fudging 
the data. I think there's a honest definition issue--what 
constitutes a ``dangerous'' situation--and it may vary from 
community to community. I mean, I just don't have the sense 
that people are trying to be inaccurate in reporting their 
data.
    Mrs. Musgrave. Well, if you think that previously they were 
overreporting in the ``assaults'' category and now you think 
that, you know, the change in reporting is reflective, how--I 
would just like to know how you think that officials found it 
important to report those fights earlier, even though they were 
nonfelony assaults, and we don't want to include them now; is 
that appropriate?
    Dr. Moloney. Let me offer a perspective on this, as we 
(inaudible) the community. The dilemma that we have in all 
aspects of reform is the concept of local control. As you know 
very well from your days serving your district in the general 
assembly here, many very sincerely were not happy with the 
reforms that were being thrust at them by the states--uniform 
standards, uniform assessment, accountability managers--and 
they said that this violated local control; but rightly, the 
general assembly and the Governors of both parties persisted in 
this.
    So now at least--and I use the example of testing in the 
CSAP, which made them universally loved--but at least we know 
in every single school what portion of youngsters got Question 
H right because of that uniformity.
    Relative to what we're talking about here today, we do not 
have that. We have, as Mr. Smith indicated, where 
circumstantial, we need to rely on a good-faith effort of folks 
out there. Now, those folks out there aren't necessarily and 
probably aren't even aware of what all of their counterparts 
are doing. But in our data gathering of things like this--
whereas we can tell you exactly how many free-induced lunches 
are given and we know what a lunch is, on the safety statistics 
what comes back is--what any statistician will tell you--is 
highly skewed data.
    Mrs. Musgrave. Well, I agree with that. But when 20 schools 
were found to be ``persistently dangerous'' and then magically 
the reporting changed and then they weren't anymore, you know, 
you do get a little concerned about how the reporting is done. 
I do, at any rate.
    I believe my time is up.
    Mr. Osborne. Well, thank you. We'd like to thank the 
witnesses for coming here. We have difficult jobs, and we 
appreciate what you do. And so you may step down now. And I 
would ask that the second panel come forward and take their 
seats and recognize that once they get up here, we will have 
the gentlewoman from Colorado make introductions. But thank you 
so much for being here today.
    Dr. Moloney. Thank you very much for having us.
    Mr. Osborne. I want to thank the members of the second 
panel for being here this morning. Since all of you reside in 
this area in Colorado and since Mrs. Musgrave represents 
Colorado, I will let her make the appropriate introductions. We 
will call on Mrs. Musgrave at this time.
    Mrs. Musgrave. Thank you, Mr. Osborne.
    It's a pleasure to introduce all of you to The Honorable 
Bob Schaffer, who is the first member of our panel. And, of 
course, he served Colorado's fourth district from 1997 into 
2002. He was Co-Chairman of the House Education Reform Caucus 
and a member of the Committee on Education and the Workforce. I 
have now taken his seat on that Committee. And prior to serving 
in Congress, Mr. Schaffer served 9 years in the Colorado State 
Senate. I believe he was the youngest person ever elected to 
the Colorado State Senate, and he was Vice Chairman of the 
Education Committee at that point. I knew him well then and I 
know him and appreciate him now for the work he does on behalf 
of education. It's very good to have you with us today.
    We also have Ms. Gloria Zradicka with us today. She serves 
as a policy analyst for the Education Commission of the States 
in Denver; and prior to this position, she was a state services 
analyst and a research assistant for the Education Commission 
of the States. Ms. Zradicka has authored numerous publications 
throughout her career, including the most recent, a commission 
report entitled ``The Persistently Dangerous School Criteria.'' 
Welcome.
    It's a pleasure to introduce my friend, Senator John 
Andrews, president of the senate. Unfortunately, when I served 
with him, he was minority leader, so we didn't get to have as 
much fun; but what a pleasure to have you here, and I commend 
you for the interest you have in education reform throughout 
the years that I've worked with you. And welcome, Senator 
Andrews.
    And then it's my pleasure to introduce our last panelist, 
Ms. Vicki Ware. And if I may say something very personal to you 
today. I know that this may be kind of intimidating to you. I 
remember the time when I first testified before the Education 
Committee in this building, and I remember my knees were 
shaking a little bit; and a few years later, I was on the other 
side of the table. And I just want to say to you, even though 
this room is set up to where we are elevated above you, we're 
not ``above'' you in any way; and your testimony today means a 
great deal to us. The most poignant things that we ever hear as 
a legislator is testimony from citizens, particularly parents. 
So I want you to feel very comfortable today as you tell your 
story. And it's a pleasure to have you with us here.
    Mr. Osborne. Thank you, Mrs. Musgrave. We'll begin with the 
witnesses now. I'd like to call Mr. Schaffer. We served 
together on the Education Committee and have come to know you 
and respect you, and we certainly look forward to hearing from 
you today.

 STATEMENT OF THE HONORABLE BOB SCHAFFER, PRESIDENT, COLORADO 
                ALLIANCE FOR REFORM IN EDUCATION

    Mr. Schaffer. Thank you, Mr. Chairman. Welcome to Colorado; 
and to the rest of the Committee and staff, thanks for being 
here. I am grateful for your attention not only to this issue 
but to express it in a way that involves a field hearing in 
this state.
    This is one aspect of H.R. 1 that I'm particularly familiar 
with, because it is one that--that I followed all the way 
through its evolution and development as an idea that dated to 
the original drafts, and there was some point of amendment 
process. This ``persistently dangerous schools'' definition was 
considered even before H.R. 1, and that was during the 
reauthorization of the Elementary and Secondary Education Act, 
which did not receive as much interest at the time; but was 
spoilage for inclusion in H.R. 1, and I'm grateful for it.
    And I might also add that it was discussed in the 
Committee. And as I recall, it was discussed on a bipartisan 
basis and with wide approval across both sides of the aisle. 
And without--and although, I will say that there was some 
objection when we met in the back room--and we're dealing with 
amendments and staffing and so forth--and when it came to the 
actual consideration on the Committee floor, it did not--it was 
the kind of amendment that, I think, was adopted in a way that 
suggested that there was great hope on both sides of the aisle 
for its successful implementation.
    And the intention was directed at parents and with the 
realization that there would be certain people in school 
settings--whether they be administrators or perhaps teachers 
and others within various states--that would find this 
offensive. This is one more measurement and one more aspect of 
public education in America. But the objective was to do--to 
begin the process with an accurate assessment of dangerous 
schools and to--and to disclose the results of these 
assessments to the people who have the greatest responsibility 
for educating their children, because they're parents. And so 
it was very much student-driven and parent-driven. And the 
expectation was that they would be empowered to make choices 
when it comes to their children.
    And this particular choice was a rather obvious one. I 
think a survey of any parents on what they care about--I think 
the school is one of their primary issues that they care about, 
meaning--the academic quality and professionalism of teachers 
and so on are things that they care about. But they also care 
about--student security and school safety is high on the minds 
of the parents in respect to their evaluation of their child's 
school.
    The Congress failed to deal with the most difficult part of 
this question by letting the states do it, and that was done 
for a couple of reasons. One is to defer to the judgment of the 
states--which I think is always proper and a good idea--but 
second, we would have never arrived at Congress agreeing on a 
definition of ``persistently dangerous schools.'' So it makes 
perfect sense--it did then and it still does now--to defer this 
definition to the several states. It was also somewhat 
expected; and from that standpoint when I was there to help 
draft this particular provision, I'm not surprised that there 
are many states that have decided the threshold should be so 
high that, in fact, no schools in their state meet the 
definition of ``persistently dangerous.''
    And to get around to a conclusion here as well, I think the 
Congress did a good thing by establishing a requirement that 
schools be evaluated by each state on the basis of the danger 
that occurs there and the kinds of the local violence that 
students must endure. I think the Congress was correct to 
suggest that there should be a connected choice element and a 
disclosure element to parents. But in terms of what happens 
next, I would--I think that there is one direction I would 
recommend to Congress; and that is, we left quite a lot to the 
U.S. Department of Education through its guidance on 
recommendations to states on how this definition ought to be 
presented. And because the Congress was relatively vague, the 
Department of Education's guidance is relatively vague as well. 
These definitions are really up to states.
    And I think, Congressman Musgrave, you put your finger--
and, Mr. Chairman, you put your finger right on the seminal 
issue here; and that is, to the extent to which parents are 
involved in the definition and implementation of this 
particular revision, my belief here in Colorado is similar to 
what I would evaluate other states to have; that I think we've 
been woefully inadequate when it comes to the involvement of 
parents in deciding where this threshold is, because I think 
the threshold is far higher than most parents would have 
arrived at on their own. And that's not a criticism 
necessarily, because these agencies are--they're not elected by 
people. They're not--you know, the process that all the states 
have gone through in arriving at this definition--are not 
individuals who are accountable to the parents to begin with. 
And I appreciate the gestures that all states have made, 
including parents.
    But I really believe that the Congress--perhaps there's one 
recommendation that I can conclude with--is that the Congress 
make greater effort to recommend that state legislatures define 
this definition of ``persistently dangerous schools'' and the 
elected representatives of the people play a greater role, 
because I think it's very clear the direction that's taken 
place by allowing an administrative bureaucratic definition 
as--is taking us to a far different place than the Congress had 
intended and most parents would expect. That concludes my 
remarks.
    Mr. Osborne. Thank you, Mr. Schaffer.
    [The prepared statement of Mr. Schaffer follows:]

Statement of Hon. Bob Schaffer, President, Colorado Alliance for Reform 
                              in Education

    Good morning Mr. Chairman and Members of the Committee. My name is 
Bob Schaffer. I live in Fort Collins, Colorado with my wife and five 
children. From 1997 to January of this year, I represented Colorado's 
Fourth Congressional District in the US House of Representatives. 
Throughout my six years in Congress, I served on the House Committee on 
Education and the Workforce. In fact, I was Vice-Chairman of this very 
Subcommittee.
    It never occurred to me that I would someday be a Committee 
witness, but I am certainly honored to appear before you today. First, 
welcome to Colorado--the state I loved talking about so much when I 
worked in Washington. It's a great state with big hopes, grand dreams 
and expectations for our children that are as big as the Rocky 
Mountains.
    People here tend to rally around our schools and teachers. We love 
seeing them succeed. We support them by applying a candid, direct and 
unambiguous philosophy to making them better.
    We believe our public schools can compete with others, and this 
year, our Legislature entrusted them with the chance to do just that. 
Our governor signed the nation's most aggressive voucher bill which 
treats teachers like real professionals, parents like real customers, 
and the state's poorest children like real Americans.
    We also believe that school improvement entails the identification, 
disclosure and correction of certain problems. The Committee's focus on 
the topic of today's hearing indicates its willingness to do the same, 
and I am grateful because the topic is an important one.
    In 2001 the Congress passed H.R. 1, President Bush's Leave No Child 
Behind initiative. The goal was, and is, to improve the performance of 
the nation's schools and elevate the performance of the nation's 
students. The program was built upon the president's belief that all 
children can learn and that all children deserve a good school to teach 
them.
    The focus was always on the child. Children trapped in 
unsatisfactory schools are the overriding objects of the law's 
compassion. The comfort of institutions and the people employed in them 
comes later. H.R. 1 seeks to rescue children trapped in failing schools 
by offering incentives and other motivation to improve. Through 
accountability, rigorous standards and disclosure, America's children 
stand a good chance of realizing more equality, economic and civic 
participation, opportunity and prosperity.
    H.R. 1 also acknowledges that certain schools, for whatever 
reasons, are dangerous places. Unable to change or improve, these 
schools are places where the chances for academic progress among 
students is remote enough to warrant candid assessment, direct 
disclosure and unambiguous changes.
    Some schools are dangerous because learning is persistently 
substandard and improvement is less than adequate. Other schools are 
dangerous because they are places of violence, corrupt or immoral 
behavior, and lack of discipline. In these schools, it is widely 
agreed, children stand little chance of learning and they face a 
serious risk of personal, physical injury. Thus the focus of today's 
hearing.
    As one who participated in the drafting of H.R. 1, I concur with 
the overall objectives of the president's initiative. I also know a 
little about the origin of the provisions of the law that speak to 
``persistently dangerous schools.'' I proposed similar language earlier 
during the reauthorization of the Elementary and Secondary Education 
Act reauthorization. In 2001, I insisted the ``persistently dangerous 
schools'' language be included in the very first legislative drafts of 
HR1.
    The goal was to help children in America's dangerous schools by, 
first, identifying them; second, by disclosing the dangerous nature of 
these institutions to the parents of children attending them, and; 
third, by encouraging, and in some cases mandating, options allowing 
parents to choose safe schools more conducive to learning.
    As one who played a direct role in the development and passage of 
this part of the nation's law, I submit now to this Committee that this 
section is being poorly and improperly implemented by most states, 
including, I regret to say, my own state.
    Clearly, the Congressional efforts to defer judgment to state 
officials and encourage state education agencies to carry out the 
spirit of the law, gave broad authority to unelected individuals in 
almost every state to define ``persistently dangerous schools.'' 
Unfortunately the definitions established by nearly every state has 
established a threshold of violence, lawlessness and disorder that is 
far above the tolerance level of the typical parent.
    It seems the standards have been set at a comfortable level for 
government employees--a level that avoids credible identification, 
sufficiently precludes honest disclosure, and perhaps most pernicious 
of all, denies liberty to those families which arguably would benefit 
most from exercising it. The result, I fear, has so far resulted in a 
situation falling far short of the intentions and expectations of the 
Congress, the president and therefore, the American people.
    Unless addressed by Congress, the resultant tragedy is that public 
school children will continue to be unnecessarily exposed to 
unacceptable levels of crime and school violence. Administrators of the 
government-owned monopoly have once again proved their proficiency at 
concealing the ugly truth about crime at public schools. According to 
the Colorado Department of Education (CDE), there are no dangerous 
schools in the entire state.
    No kidding. Under new federal guidelines, states were required to 
inform the US Department of Education last month of the number and 
identity of dangerous public schools. Colorado's report claimed every 
school in each of the state's 178 school districts is safe. No worries. 
No problems. No trouble.
    The controversy began with the well-intentioned new law enacted by 
President George W. Bush and the US Congress. The measure was designed 
to rescue children trapped in dangerous institutions and give them 
newfound liberty to escape to safer schools. Parents would be informed 
if their kids were at risk.
    To avoid a one-size-fits-all approach, the Congress left the 
definition of ``persistently dangerous schools'' to each state. Under 
Colorado's new criteria, however, children would practically have to 
attend a school in a war zone before officials would warn parents of 
their child's imminent peril.
    As usual, the real issue here is parental choice. Government-owned 
school managers and their accomplices in the teachers'' unions 
reflexively reject any notion that parents are capable of choosing 
better schools--even when school safety is an issue.
    The CDE convened a committee of these types to advise the state in 
implementing the new federal law. The result is a ``farce,'' according 
to one school safety expert.
    At Fort Collins High School, for example, the school where two of 
my daughters are attending at this very moment, students would have to 
survive a minimum of 540 felonies over a two-year period before parents 
would learn the school is persistently dangerous. It gets worse. Not 
all dangerous crimes count toward the state's calculation.
    The CDE lists only the most egregious felonies for reporting 
purposes--murder, first- and second-degree assault, kidnapping, 
aggravated robbery, first degree arson and the like. Even the guy in 
charge of drafting the state's report admitted the incredibility of 
Colorado's reporting guidelines. The Denver Post quoted the CDE's own 
Dave Smith who confided, ``In order to be persistently dangerous, you'd 
have to let the staff give up and let the students run the school.
    For years, Colorado's parents and students have been victims of 
underreporting. Of course, no school principal is eager to report all 
incidents of school crime. The conscientious ones do it anyway. Others 
just underreport, but that doesn't change conditions in schools.
    Every day, according to the Center for Study and Prevention of 
Violence at the University of Colorado, approximately 100,000 children 
nationally are assaulted at school. Additionally, 5,000 teachers are 
threatened with physical assault and 200 are actually attacked. 
Approximately one of every eight students has reported carrying some 
form of weapon to school, the CU researchers report.
    These findings will likely never be accurately reflected in ``self-
reported'' school data. According to Kenneth S. Trump, President of--
National School Safety and--Security Services ``Since being labeled as 
`persistently dangerous' has serious political and administrative 
implications for local school administrators, principals will be 
pressured to underreport and/or non-report school crime and violence.''
    In testimony before the United States Senate, Trump explained, 
``The ability of school security professionals, school resource 
officers, and others in similar capacity to publicly speak about the 
real security issues within their schools is also often limited. Again, 
denial, image concerns, politics, and bureaucracy often prohibit these 
individuals to openly discuss or testify to their real findings and 
recommendations on what needs to be done to improve school safety. It 
is not uncommon to find that individuals who do so against the will of 
their superiors soon become transferred or unemployed.''
    Trump is right. It is the politics of public education that has 
betrayed the interests of children by placing them behind those of 
dangerous schools and the people employed by them. To avoid the 
prospect of parents choosing competing institutions, state officials 
have simply decided to look the other way and ignore dangerous crime.
    Sending kids into persistently dangerous schools, according to 
President Bush ``is the ultimate betrayal of adult responsibility.'' 
It's a greater crime that parents in Colorado will be denied full 
disclosure and the empowering choices Bush and Congress intended.
    When it comes to persistently dangerous schools, our state and 
others have gone to pathetic lengths to deny parental choice by simply 
understating the ``danger.'' It is the moral equivalent of locking 
innocent children in a burning building. Colorado schoolchildren 
deserve better.
    Mr. Chairman, I think it was a good idea to leave the definition of 
``persistently dangerous schools'' to the states. I have always opposed 
the heavy hand of government, yet I always support laws that empower 
individuals over governments--federal, local, or even state ones.
    In finding a solution to the failure of the law to be applied as 
intended by the Congress, I urge you to seek solutions that perhaps 
involve statutory definitions established by State Legislators. Without 
involving those elected individuals who answer directly to the very 
parents who love their children, we should expect this and other 
sections of H.R. 1 to be defined by mediocrity.
    This concludes my remarks. Thank you Mr. Chairman.
                                 ______
                                 
    Mr. Osborne. Ms. Zradicka.

  STATEMENT OF MS. GLORIA ZRADICKA, POLICY ANALYST, EDUCATION 
                 COMMISSION OF THE STATES (ECS)

    Ms. Zradicka. Good morning.
    The (inaudible) provides some background information among 
all states (inaudible) as far as implementing this requirement 
of No Child Left Behind, and it's been mentioned that the 
purpose of this is to allow children who are attending schools 
designated as ``persistently dangerous'' to have the 
opportunity to transfer to schools that are safe. The U.S. 
Department of Education requires states to provide information 
to the Secretary of Education annually on the number of schools 
that are identified. It also requires the schools to maintain a 
list of persistently dangerous schools that's readily available 
to the U.S. Department of Education. And the local education 
agencies are required to notify the parents at the point at 
which schools are identified within 14 days prior to the 
beginning of the school year, so children get the opportunity 
to transfer to a safe school.
    The analysis that I've done has been on 46 of the adopted 
and public state policies that were available to us at the time 
that we were looking at these. And the policies identified that 
the states used a variety of factors to determine what 
``persistently dangerous'' schools are.
    One of the factors that states across the board looked at 
was a time span. The majority--I shouldn't say ``majority''--
over 50 percent of the states looked at a 3-year time span when 
they were considering what period should they look at to decide 
which school was ``persistently dangerous,'' and most said that 
they need to--the events needed to happen every one of those 3 
years. About 25 percent of the states looked at a 2-year time 
period; again, that the events must happen in each one of those 
2 years. The remaining states did a combination of two and 3 
years. Some of it was because they were just forming the new 
policy and didn't have 3 years' worth of data. Some of them--
they looked at the current year and said that they needed to be 
additionally in one of the previous 2 years, so there's a 
combination of both. So there's a factor of two to 3 years that 
states looked at when they were developing the criteria.
    Another factor that was considered is the threshold number 
of incidences or offenses that should occur before the school 
is identified as ``persistently dangerous.'' About half of the 
schools used a combination of the percentage of the student 
enrollment for some offenses and a specific number of 
incidences for other offenses. A real typical way that the 
states did this is they might use a percentage of the 
enrollment when they were looking at less serious offenses or 
violations, and then they might use a specific number when they 
use something like the Gun-Free Schools Act, so they would be 
looking at distinguishing between less-violent and more-violent 
situations as to how they looked at those.
    Slightly less than a third of the states used only a 
specific number of incidences to determine where their 
threshold was, and less than one-fifth of the states used 
(inaudible) based solely on the percentage of the student 
enrollment. And when they were based on the percentages of the 
student enrollment, these percentages range from one-half of a 
percent to 5 percent of the student enrollment.
    So you can see there's a wide variation of how the states 
determined how they were going to consider as situations to 
consider this--as situations to determine this.
    The other factor that states looked at is: What did they 
consider as the instances or offenses that would be counted 
when they were figuring out their threshold numbers? Some of 
them did a very detailed list of offenses, and some of them did 
just the Gun-Free Schools Act violations. About 20 percent of 
the states used their generic terms on weapons for violent 
defenses to determine--to define what their situation was going 
to be; 16 states referred to offenses that were defined 
according to their state criminal codes. And about half the 
states, in addition to whether they used offenses defined as 
criminal or otherwise, specifically referred to the Gun-Free 
Schools Act violations, and most of the remaining states in 
some way referred to ``possession of weapons'' in their 
definition of what they used as criteria for ``persistently 
dangerous'' schools.
    The number of schools that states determined really varies 
on that factor; and it can be a combination, because some 
states used a very narrowly defined list of offenses, but they 
may also have a very low threshold. And when they have a very 
low threshold, that (inaudible) the potential of still having a 
large number of ``persistently dangerous'' schools. But 
(inaudible) we know from circumstances that that's not what 
happened. And conversely, states that have a very detailed list 
of offenses might have a very high threshold of offenses, and 
that has the potential, again, of attracting a very relatively 
low number of dangerous schools.
    When I did this written testimony, at that point there were 
29 states that had declared what the number of ``persistently 
dangerous'' schools was. Since then--as we all know, and we've 
mentioned here--44 states have said they do not have 
``persistently dangerous'' schools, in addition to D.C. Saying 
they don't have ``persistently dangerous'' schools, and then 
the remaining schools have been identified (inaudible) total to 
52. So that's kind of where it is across the states.
    There's a couple of notes of interest that I might comment 
on. Indiana's policy says that after a school meets their 
criteria for the third consecutive year, they don't 
automatically designate that school as ``persistently 
dangerous.'' They establish a panel of local and state safety 
experts to decide if in fact: Is that school ``persistently 
dangerous''?
    Florida is the other one that has done a somewhat unique 
way of defining it. Once a school has met their criteria of 
what ``persistently dangerous'' is, then they do a survey of 
the students, parents, and the school personnel. And if the 
majority of the survey respondents perceive that school to be 
unsafe, then they declare that's ``persistently dangerous.''
    So those two are the most unusual. Most of the rest of them 
have a pretty much--a time span. What are their threshold 
numbers? And what are their criteria? What are the offenses and 
the instances that they use in determining ``persistently 
dangerous''?
    Thank you very much.
    Mr. Osborne. Thank you very much.
    [The prepared statement of Ms. Zradicka follows:]

 Statement of Gloria Zradicka, Policy Analyst, Education Commission of 
                            the States (ECS)

    This testimony provides information on the federal requirement, 
specified in the No Child Left Behind Act (NCLB), that allows students 
attending a ``persistently dangerous school'' to transfer to a safe 
school. It provides descriptions of the requirement and of respective 
state policies.
    States receiving funds under the NCLB are required to adopt and 
implement an ``Unsafe School Choice Option'' policy.1 This 
policy must include a provision allowing students who attend a school 
designated as ``persistently dangerous'' to transfer to a safe school 
within the local education agency (LEA), including public charter 
schools. The definition of what constitutes a ``persistently dangerous 
school'' is determined by each individual state.
---------------------------------------------------------------------------
    \1\ H.R. 1, Title IX, Part E, Subpart 2, Section 9530.
---------------------------------------------------------------------------
    The U.S. Department of Education2 requires states to 
provide information to the U.S. Secretary of Education annually about 
the number of schools identified. It also requires states to maintain a 
list of persistently dangerous schools, so that it is readily 
accessible to the U.S. Department of Education's representatives upon 
request. LEAs that have a persistently dangerous school are required to 
notify the parents of students attending the school that the school has 
been identified as ``persistently dangerous'' and offer students the 
opportunity to transfer to a safe school.
---------------------------------------------------------------------------
    \2\ Unsafe School Choice Option: Draft Non-Regulatory Guidance 
(Sections B-C, July 23, 2003).
---------------------------------------------------------------------------
    States must also identify persistently dangerous schools in 
sufficient time for the LEAs to notify affected parents of the option 
of transferring their children to a safe school at least 14 days prior 
to the start of the school year.3
---------------------------------------------------------------------------
    \3\ Federal Register (pages 35671-35672, Vol. 68, No 115, 2003).
---------------------------------------------------------------------------
    This analysis is based on 46 adopted or proposed state policies 
that ECS has been able to document. These policies reveal that states 
use a variety of factors to identify persistently dangerous schools. 
(Criteria used by individual states are outlined in the report attached 
to this testimony.)
    One factor is whether the number of offenses/incidents taking place 
at a school are examined over the course of two- or three-years. Over 
50 percent of the state policies consider a three-year period and 
require the offenses/incidents to occur in each of the three years for 
a school to be designated as persistently dangerous. Twenty-five 
percent of the states consider offenses/incidents occurring in each 
year of a two-year period. The remaining states use a combination of 
two and three years, such as considering offenses/incidents occurring 
in any two years of a three-year period.
    Another factor considered is the threshold number of incidents/
offenses required to occur before the school is identified as 
persistently dangerous. Almost half the states use a combination of a 
percentage of the student enrollment for some offenses and a specific 
number of incidents for other offenses. For example, a state might use 
an enrollment percentage for determining the threshold number of less 
violent offenses/incidents but will establish a specific number for 
more serious offenses such as Gun-Free Schools Act 
violations4 or homicide. Slightly more than one-third of the 
states use only a specific number of offenses/incidents to determine 
their allowable threshold. Less than one-fifth of the states determine 
the allowable number of offenses/incidents based solely on a percentage 
of the student enrollment. When percentages of student enrollment are 
used, the percentages range from one-half percent to 5 percent.
---------------------------------------------------------------------------
    \4\ A state law mandating the expulsion from school for a period of 
at least one calendar year any student who is determined to have 
brought a weapon to school.
---------------------------------------------------------------------------
    States' definitions of offenses/incidents vary from Gun-Free 
Schools Act violations to detailed lists of offenses or crimes. Almost 
20 percent of the states use the generic terms of ``weapon'' or 
``violent offense'' to define applicable incidents/offenses. Sixteen 
states define offenses according to their state's criminal code. About 
half the states specify ``Gun-Free Schools Act'' violations to 
determine persistently dangerous schools and many of the remaining 
states include some reference to weapons possession in their 
definition.
    The number of schools in a state determined to be persistently 
dangerous thus depends on the factors included in a state's policy. A 
state using narrowly defined offenses also may have a low threshold for 
the number of offenses, potentially increasing the number of schools 
determined persistently dangerous. A state using a detailed offense 
list may have a high offense threshold, potentially resulting in a 
relatively low number of persistently dangerous schools.
    A search of state Web sites and the news media found the number of 
persistently dangerous schools identified in 29 states. No schools were 
deemed persistently dangerous in Alabama, Arkansas, California, 
Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Kentucky, 
Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, 
Nebraska, North Carolina, Ohio, Rhode Island, South Carolina, Virginia, 
Washington and Wisconsin. States identified as having persistently 
dangerous schools are: New Jersey--seven schools, New York--two 
schools, Oregon--one school, Pennsylvania--28 schools and Texas--six 
schools.
                                 ______
                                 
    [An attachment to Ms. Zradicka's statement is located at 
the end of the hearing.]
    Mr. Osborne. Senator Andrews.

 STATEMENT OF SENATOR JOHN ANDREWS, PRESIDENT, COLORADO SENATE

    Mr. Andrews. Thank you, Mr. Chairman, and Congressman 
Musgrave.
    Mr. Chairman, it's my hope that at the end of the day 
today, you'll be able to say you had a much more friendly 
welcome at the capitol in Denver than you ever did at Folsom 
Field in Boulder.
    Mr. Osborne. I was always treated well, until one time 
Ralphie about ran over me.
    Mr. Andrews. And as far as my friend, Mrs. Musgrave, you 
were very gracious in telling Ms. Ware that you don't feel that 
you rank above her. And I want the record to show that I know 
you rank above me, and I think it's exactly as it should be.
    I certainly agree with the Committee that no student should 
have to attend a public school in which his or her personal 
safety is constantly at risk, and so I applaud the intent of 
Congress in requiring Colorado and other states to guarantee 
children an exit from such schools as a condition of receiving 
Federal grant money.
    What a contrast from the late '40's when I entered public 
school. The survey said that the main problems in public 
schools across the land were things like chewing gum and 
running in the halls, and now it's weapons and pregnancies and 
drugs, all too prevalent.
    I'm just concerned that the intent of the Persistently 
Dangerous School Provision won't be fulfilled in a number of 
states--including Colorado, as matters now stand--because of 
some of the data problems that were identified by Commissioner 
Moloney and Mr. Smith earlier in their testimony.
    I want to focus on the 20 schools that were almost 
classified ``persistently dangerous'' that you were asking 
about earlier, Mrs. Musgrave. As Mr. Smith indicated, the 
distinction is between second-degree assault, which is called 
an ``assault and fight'' for purposes of the rankings or third-
degree assault, which is excluded now. What is this crime that 
we're excluding? According to the Colorado Revised Statutes, a 
person commits the crime of assault in the third degree if he 
knowingly or recklessly causes bodily injury to another person 
or with criminal negligence he causes bodily injury to another 
person by means of a deadly weapon. Or as the rules are written 
now, no incident of this kind that occurs in a Colorado public 
school can count toward the tabulation of ``persistently 
dangerous'' schools, so that countless fights between students 
leading to countless bodily injuries aren't enough to trigger 
the escape provisions of the No Child Left Behind Act, unless 
someone makes a judgment call upgrading those fights and those 
injuries to at least a second-degree assault.
    I'm entirely in favor of allowing--under Federal law 
allowing states to make their own rules as much as possible, 
but this seems to me to be bureaucratic hairsplitting that 
defeats the intent of No Child Left Behind. What difference 
does it make to the students who got injured if it was only a 
third-degree assault? What difference does it make to the other 
students who stood by intimidated or to the parents who were 
left feeling that the education rulebook defies common sense.
    I was just talking with Mr. Smith, and I'm not clear 
whether the distinction between third-degree and second-degree 
assault was written in our School Report Card Statute--you 
remember helping us in that 4 years ago, Congressman Musgrave--
or whether it is a rulemaking. But whichever, I'm going to see 
what can be done to include this in the incident reporting, so 
that instead of giving the benefit of the doubt to face-saving 
for administrators and school boards, we give the benefit of 
the doubt to student safety.
    I associate myself with Congressman Schaffer's comments. I 
don't criticize our fine State Board of Education elected 
members, Commissioner Moloney, or our fine State Board of 
Education staff, but we've got to get some common sense into 
this process. It doesn't really matter what schools get 
embarrassed or whose applecart gets turned over or how many 
students are allowed to transfer out. This is supposed to be 
about the students.
    One more point. In the State Department of Education 
published guidelines, if a school is declared ``persistently 
dangerous,'' the department suggests local officials then 
provide families with survey data that indicate which nearby 
schools are perceived as safe or not, based on perceptions 
scientifically gathered from students, employees, and parents. 
This is saying, ``If you really want to know how dangerous a 
particular school is, ask the people who go there every day.'' 
Now, that's common sense.
    And again, legislatively or by rulemaking, I want to press 
for a wider use of such survey data on school safety. These are 
``customer satisfaction surveys,'' as we would call them in the 
private sector.
    In summary, I think we need to put the burden of proof 
where it belongs, not on citizens and taxpayers to prove that 
schools are dangerous--but the other way: Put the burden of 
proof on educators to prove that schools are safe and unlock 
the doors if they are not. We have to make consumer 
satisfaction the ultimate yardstick for public education, as it 
is for all the other goods and services we buy.
    I'm proud Colorado now leads the Nation with a voucher 
program to allow students to transfer out of unsatisfactory 
public schools for reasons of safety or otherwise. But this 
voucher law of ours, if it has any shortcomings, is too 
bureaucratic in its yardsticks. Statistics on poverty and test 
scores are fine, but let's have more involvement of parental 
self-determination. That's my same concern about No Child Left 
Behind. I welcome the oversight and the monitoring from 
Congress on this, and we will try to do the same from the 
Colorado General Assembly.
    Mr. Osborne. Thank you, Senator Andrews.
    [The prepared statement of Mr. Andrews follows:]

     Statement of Senator John Andrews, President, Colorado Senate

    No student should have to attend a public school in which his or 
her personal safety is constantly at risk. I applaud the intent of 
Congress in requiring states to guarantee children an exit from such 
schools as a condition of receiving NCLB federal grant money.
    But I am concerned that this intent will not be fulfilled here in 
Colorado, as matters presently stand. We are one of many states across 
the country that claim to have no persistently dangerous schools.
    The claim rests on shaky data. According to media reports, along 
with information I have received from state education officials, 
Colorado would have had to identify 20 dangerous schools in this year's 
rankings if the incident category labeled ``assaults and fights'' had 
included the criminal offense of third-degree assault, as well as 
first- and second-degree assault.
    Let me read you the definition from section 18-3-204 of the 
Colorado Revised Statutes: ``Assault in the third degree. A person 
commits the crime of assault in the third degree if he knowingly or 
recklessly causes bodily injury to another person, or with criminal 
negligence he causes bodily injury to another person by means of a 
deadly weapon.''
    No incident of that kind, occurring in a Colorado public school, 
counts toward the tabulation of persistently dangerous schools, under 
the official policy adopted by our state department of education. 
Countless fights between students, leading to countless bodily 
injuries, are not enough to trigger the escape provisions of the No 
Child Left Behind Act unless someone makes the judgment call that 
upgrades those fights and those injuries to second-degree or first-
degree assault.
    I'm all for federal law letting states make their rules as much as 
possible, but this kind of bureaucratic hairsplitting cannot be what 
Congress intended when it offered kids a transfer to safer classrooms. 
Tell it to the students who got injured. Tell it to the other students 
who stood by intimidated. Tell it to the parents who feel cheated by an 
education rulebook that plays word-games and insults common sense.
    I challenge Colorado's education policymakers to redraw their 
incident reporting guidelines in a way that gives the benefit of the 
doubt to student safety, rather than face-saving for administrators and 
school boards. I urge them to include third-degree assault in the 
statistics from now on, no matter whose applecart gets upset--no matter 
how many schools get embarrassed--no matter how many students are 
entitled to transfer out. Aren't the students what this is all about?
    Let me draw the committee's attention to one other significant item 
in the Colorado Department of Education document entitled ``Safe School 
Choice Option: Procedures for Persistently Dangerous Schools.''
    When and if any school in our state is ever identified as 
dangerous, the department suggests that local officials provide 
families with survey data on which nearby schools are perceived as safe 
or unsafe, based on perceptions scientifically gathered from students, 
employees, and parents.
    That's just a fancy way of saying that if you really want to know 
how dangerous a particular school is, ask the people who go there every 
day. I endorse that common-sense approach, and I will encourage 
Colorado educators to make much wider use of survey data on school 
safety--customer satisfaction surveys we might call them.
    A 1994 study produced by Metropolitan Life Insurance found that 
annually across the United States, one in four students and one in nine 
teachers are attacked in schools.
    A 1996 poll by Public Agenda, sampling 1300 high-school students 
nationwide, found that 48 percent of them said drugs and violence are 
serious problems in their schools.
    Are things still that serious in 2003? Are they that serious here 
in Colorado? We need to know. We need to put the burden of proof where 
it belongs--not on citizens and taxpayers to prove that schools are 
dangerous, but on educators to prove that schools are safe. We need to 
find ways of making customer satisfaction the ultimate yardstick for 
public education, just as it is for all the other goods and services we 
buy.
    That was the idea behind a bill that Congresswoman Musgrave will 
remember my proposing several years ago. It was called the Colorado 
School Guarantee Act. The bill simply stated that as a condition of 
receiving state aid, every public school shall guarantee, to the 
satisfaction of the parent, a learning environment fully conducive to 
the student's academic progress, moral development, and physical 
safety.
    The guarantee would be enforced as follows: (1) A parent who is not 
satisfied may file an affidavit stating the reasons, after which the 
school has 90 days to take corrective action. (2) If the parent is 
still not satisfied, a hearing is held for school to show cause why 
relief should not be granted. (3) Relief, if granted, will consist of a 
scholarship voucher good for tuition at any accredited nonpublic 
school, not to exceed 80% of district per-pupil revenue, for the 
student's remaining years at the current level of education--
elementary, middle, or high school.
    My proposed School Guarantee Act died in committee in February 
2000. It went too far too fast, in the direction of affirming that the 
parent is the ultimate educator of the child--thus limiting the role of 
government to facilitating, not dictating.
    I am grateful and proud to note that three years later, April 2003, 
Colorado did enact a far-reaching school voucher program, House Bill 
1360, which is already signing up families and schools for its 
launching next summer. If this new program has any shortcoming, in my 
opinion, it is the reliance on bureaucratic measurements such as 
poverty and test scores, rather than pure parental self-determination, 
to decide when the doors will be unlocked and families will get to 
choose.
    Colorado's voucher program is still a step in the right direction, 
and so is the federal safe school choice option. That option too is 
overly bureaucratic, as I have stated--too easy for the establishment 
to sabotage, too difficult for parents to take advantage of. I hope the 
Congress will continue to monitor its implementation and make necessary 
changes. We here in Colorado will do our part to make the promise of 
school safety is honestly fulfilled for every child, every family.
                                 ______
                                 
    Mr. Osborne. Ms. Ware.

                STATEMENT OF VICKI WARE, PARENT

    Ms. Ware. I just have a statement to make.
    Mr. Osborne. That will be fine.
    Ms. Ware. My son attended MLK for 2 years. And the last 
year, on the way home, he was followed by a known gang member 
and was beat up really, really bad. He was beat up horribly 
bad.
    I went to the school the next morning; and they said, if 
they suspend the other guy, they would have to suspend my son. 
And I didn't have any understanding of that. I just removed my 
son out of MLK and placed him in a different school.
    And shortly after that, my 12-year-old daughter was beat up 
on the way home from school, and so I removed her from MLK and 
placed her in another public school to where I feel they will 
be safe there.
    Mr. Osborne. So that's the experience you've had 
personally?
    Ms. Ware. Yes.
    [The prepared statement of Ms. Ware follows:]

                        Statement of Vicki Ware

    In the year of 2000 my son was followed home by a known GANG MEMBER 
and beat up horribly bad. He had to miss one week of school due to his 
injuries. MLK Middle School then filed charges with the Juvenile Court 
because my son had missed a week of school. I called the school 
everyday to let them know that my son was hurt and he wouldn't be in. 
So shortly thereafter, I removed my son from MLK Middle School and 
placed him in Gove Middle School. About three months later, after 
school my 12 year old daughter was followed home and was in a fist 
fight with another 12 year old girl. The next morning I took my 
daughter into the school to let her counselor know what was going on. 
As we sat waiting for her counselor, I noticed a boy in the next office 
pulling razor blades from the bottom of his shoe. All the while the 
counselor that was in the room with him said, ``Your parents are going 
to be very upset when they hear about this.'' I feel that the police 
should have been called first, then his parents. My concern was about 
my daughter at the time. This was the 2nd to last day of school. I 
removed my daughter from MLK Middle School and placed her in Gove 
Middle School.
                                 ______
                                 
    Mr. Osborne. OK. Well, I'd like to thank all of the 
witnesses for coming today, and we'll ask a few questions at 
this point. And starting with Mr. Schaffer.
    You were in Congress when ``No Child'' was written. I 
remember your sitting up on a higher dias than I was, and 
deservedly so. And I wondered if you could amplify a little 
bit--some of your opening remarks, I think, addressed this--but 
could you tell me a little bit more about what you thought the 
intent of this provision was when Congress drafted the law.
    Mr. Schaffer. Sure. Just within the context of the overall 
purpose and intentions of H.R. 1, there are really three parts. 
One was a higher level of national evaluation of student 
performance, the second was granting greater degrees of 
flexibility to the states, and the third element, the president 
asked us to move forward on. His proposal was making greater 
opportunities available for parents to exercise marketplace 
decisions with respect to education. And that last element 
was--was to be supported by better data-gathering--again, both 
on an academic side and on a performance side from the 
standpoint of America's public schools.
    And so it was--it's an interesting thing here that one of 
the driving elements of this ``persistently dangerous school'' 
language was to allow for greater levels of choice. We--in 
fulfilling the president's vision of leaving no child behind--
we wanted to make sure that children who were trapped in 
schools that were not teaching them well would have the 
opportunity to leave and choose other schools.
    And that marketplace dynamic is believed by the president 
and ultimately by the Congress--or eventually by the Congress--
to create school improvement through greater levels of 
competitive schools. And this--and it was also agreed, Well, if 
we're going to be concerned about the intellectual well-being 
of children, parents tell us, We should also be concerned about 
the physical well-being of children in certain schools.
    And so this information and data-gathering was designed to 
be a tool to, first, begin the process of getting better data, 
but also arming parents with that data so that they could 
exercise those choices. It was designed to be for parents--pro-
parents--and not to be an extraordinary high threshold so that 
the law would not apply in the vast majority of America's 
states and the schools within them.
    Mr. Osborne. OK. Thank you very much.
    And, Ms. Zradicka, apparently you're somewhat of an expert 
in this area--at least you've gathered a lot of data--and I 
wondered if you could provide any suggestions as to what you 
think maybe would be a little bit more uniform standard that we 
might look at across the country.
    Ms. Zradicka. Well, you could look at the data from the 
policy's perspective. I think one of the things that the states 
were trying to get at--and this is only, you know, based on my 
perceptions--is they were trying to avoid tagging schools as 
being ``persistently dangerous'' if there were one or two 
instances that happened, which is why they were getting into 
the time period.
    The actual document that the Honorable Robert Schaffer 
referred to--a nonregulatory document--actually used the phrase 
``a pattern of violence.'' And I think that's what states were 
trying to get into with their two- to 3-year time period that 
they looked at, and also, you know, looking at what the 
situations (inaudible). And possibly that's what people need to 
look at is: Were they considering in this (inaudible)--as 
Senator Andrews mentioned--(inaudible) you know, What do they 
consider as situations of violence? Do they consider them third 
degree? Don't they consider them third degree? Because a lot of 
the states, when they spelled out (inaudible) criminal code, 
they specified first- and second-degree assault, first- and 
second-degree, you know, whatever. So that might be a place 
that people can look at and say: Is this valid or not valid?
    Mr. Osborne. All right. Senator Andrews, you mentioned the 
``second'' and ``third'' distinction. And is this strictly a 
legal distinction made by the courts, or who makes that 
distinction?
    Mr. Andrews. As I understand, when criminal charges would 
be brought by a district attorney, Mr. Chairman, it is a 
judgment call according to certain criteria.
    I heard Mr. Smith clarify in response to a question that 
fights were overreported in year one causing the 20 schools to 
qualify as almost ``persistently dangerous'' because third-
degree assaults were included, and I heard him say that a 
``third-degree assault involves no injury.'' The definition I 
read you from our statutes twice mentions that ``injury has 
occurred.'' It doesn't just say that ``there might have been'' 
but that there was in fact an injury. Now, I imagine when a 
prosecutor would bring charges, the question was: How serious 
was the injury? How intentional was the injury?
    But as I said earlier, it seems to me that it doesn't 
matter very much to the student injured, the other students who 
live in a climate of fear as a result, and the families who 
also have a sense of apprehension, as Ms. Ware would have had 
in sending her child off to school every day.
    Mr. Osborne. OK. Thank you. My time is up.
    Mrs. Musgrave.
    Mrs. Musgrave. Thank you, Mr. Chairman. In regard to Martin 
Luther King Middle School--that is not in the category of 
``persistently dangerous schools''--in the 2001 and 2002 school 
year it had 326 assaults/fights--where CDE might think that's 
overreported--it had 8 dangerous weapons, 8 drug abuses, and 5 
alcohol and tobacco abuses, and not to mention 626 other 
violations of the code of conduct. Senator Andrews, do you 
think this school is safe?
    Mr. Andrews. I certainly don't. And this is why--whether it 
involves a legislation or whether it involves simply 
consultation with our State Board of Education--I think we need 
to change the threshold.
    Reference has been made several times to our ``School 
Report Card.'' I'm proud that Colorado is leading the United 
States in this regard, as we are with our voucher plan. But I 
think that we may need to consider whether the School Report 
Card statistical reporting is classified in a way that we as 
legislators feel honestly gives the right information to 
parents and to the public, or we may need to delink the School 
Report Card criteria from the ``persistently dangerous 
schools'' qualifications to comply with No Child Left Behind.
    But the numbers you read me at Martin Luther King Junior 
High School are shocking. They ought to disturb all of us. They 
ought to alarm all of us. And these aren't just numbers on 
paper. Every single one of those 326 assaults and fights was a 
child like the son and daughter of Ms. Ware, and something has 
to be done.
    Mrs. Musgrave. Senator Andrews, further--you know, I asked 
the question earlier: What happened to the 20 schools? What 
happened when they were classified as ``persistently 
dangerous''? Do you have a comment on that in regard to those 
20 schools in Colorado?
    Mr. Andrews. The Rocky Mountain News focused in on the 
dramatic falloff of reported fights and assaults in year two. 
It pointed out not only--I believe it used Martin Luther King 
Junior High here in metro Denver. It also used a school in 
Leadville, a middle school in the rural Colorado community 
where I grew up where we thought it was pretty safe. So this is 
a problem across the state.
    And the technically correct guidance given by Mr. Smith and 
his colleagues at the state department to tell these schools, 
You're not reading the criteria correctly; put this in a 
different box--it was put under the box called ``other'' 
instead of ``assaults and fights''--I don't fault them for 
giving that guidance, but something is clearly--the ball has 
been dropped somewhere between the legislature and the 
rulemaking to allow, as I call it in my testimony, 
``bureaucratic hairsplitting'' of this kind to get in the way 
of the commonsense intention of No Child Left Behind.
    I should mention that Colorado is--Colorado parents and 
students are fortunate that there is already a wide-ranging 
option to transfer a student out of one public school into 
another in the same district or a different district before No 
Child Left Behind was ever passed, and that's the option Ms. 
Ware exercised.
    So this issue is really less urgent in Colorado, because of 
the initiatives that have been taken already in legislation to 
allow a wide-ranging choice of public schools for parents for 
whatever reason. They don't have to give a reason at all. They 
just say, I'm moving my child as soon as I can find space. But 
it is more urgent in other states that don't have that kind of 
escape option in the absence of the proper application of the 
``persistently dangerous'' criteria.
    Mrs. Musgrave. Well, I am not without sympathy for teachers 
and administrators that constantly face the challenge of 
dealing with students that are committing criminal behavior or 
even inappropriate behavior. It's not their fault. And I'm not 
trying to say that. But transparency is the goal here.
    And, Senator Andrews, how can we make that more attractive 
for these school administrators so that parents can really get 
an accurate idea of what's going on in the schools in regards 
to (inaudible)?
    Mr. Andrews. I think Mr. Smith is absolutely right when he 
said that the integrity of the data is only as good as the 
integrity of the people who compile the data. But the very fact 
that the MLK Middle School reported those 326 assaults says to 
me, There is good faith in the reporting compliance by many, 
many of these school administrators, and so--Commissioner 
Moloney is correct. Sometimes there's a disincentive to report, 
lest I make my school look bad, lest I get penalized or even 
lose my job. But it sounds like in the face of that, there's 
still a good-faith effort to comply with this reporting.
    I bring it right back to myself and the 99 others of us who 
serve in the state senate and the state house. We have got to 
take a hold of this thing and define it better, as Mr. Schaffer 
suggested.
    Mrs. Musgrave. Well, that brings me to a question for 
Congressman Schaffer. What do you think is the best solution to 
this problem that we're facing with transparency?
    Mr. Schaffer. I do believe it would make eminent sense for 
the Congress and the Department to--not to mandate, certainly, 
but to the extent that the DOE guidance lays out a vision or a 
process for state education agencies and local education 
agencies to implement this law, I think that--I think we ought 
to put more emphasis at the Federal level on encouraging states 
to make this at a legislative level. And I think that's a 
relatively easy thing to do, and perhaps it doesn't even 
involve Federal legislation.
    But within a broader context of expectations, I think we 
should expect that the tendency of states is going to be--even 
with legislative language--is going to be to underreport. And 
if there are--and if the data collection accounts for that, I'm 
persuaded by Senator Andrews that it ought to be on the basis 
of having schools prove to parents essentially the safety 
associated with all the individual schools, rather than argue 
from the assumption that they're all safe; and if the 
statistics get high enough, then we'll get around to notifying 
parents.
    This parental notification part is the most powerful 
element. And that is what is being avoided--the quest is to 
avoid parental notification, the letter that goes home from a 
school to parents saying, This is a ``persistently dangerous 
school.''
    And again, I'm much in the place where Ms. Ware is. My 
level of tolerance and threshold is much lower than what I 
would get--my twin daughters right now are in public high 
school in Fort Collins. And given the size of that school, it 
would take 540 dangerous events over a 2-year period before I 
would be notified that my children are in a dangerous place 
under Colorado's guidelines.
    I'm--and I realize--there's just something that has to be 
said here. I went to the Department of--the Denver Health 
Department Web page to find out what it takes to close down a 
restaurant. And the enclosure for imminent health hazards 
include: There's justification that there would be no hot 
water, sewage problems, no utilities, pest infestation, 
contaminated food, a food-borne illness outbreak, extreme 
uncleanliness, and inadequate refrigeration. One event. And 
now, the people who implement the ``persistently dangerous 
schools'' language are different than the ones who deal with 
health inspections. And from that standpoint, it's not an 
apples-to-apples comparison, except for the commentary it makes 
about us as a society, when it takes one event to shut down a 
restaurant, but 540 before I get a notice as a parent. It just 
indicates that as a society we care more about what I feed my 
stomach rather than what our schools feed my children's minds.
    Mrs. Musgrave. I yield back, Mr. Chairman.
    Mr. Osborne. Thank you. I think we might mention one thing 
here--and that is, that in my previous travels, sometimes I'd 
run into a school that had a fence around it that was very 
high--not a deer or elk could get over that fence--and metal 
detectors required to get into that school, and I'm sure that 
administrator felt that he was doing everything he could and 
probably still had quite a bit of violence in that school.
    So this is not an easy problem. It's very easy for us to 
sit and throw stones at the schools. But some of it is 
neighborhood-driven. The clientele, if they come to school 
violent, there's going to be violent type of events, and I 
think we recognize that fact. But having said that, however, I 
think we also would probably agree here today that something is 
amiss when you have 44 states who can't find one single school 
that is not dangerous.
    Ms. Ware, I would like to just ask you a couple of 
questions here. When your children were assaulted, do you know 
whether those were second- or third-degree assaults? Did 
anybody ever tell you?
    Ms. Ware. No. I just assumed that my daughter was maybe a 
first-degree assault--not first-degree--maybe second-degree, 
and my son first-degree.
    Mr. Osborne. All right. And then what criteria did you use 
as to what schools you would send them to when you pulled them 
out? Did you have any information that you were able to 
(inaudible)?
    Ms. Ware. I asked other parents. And I've known personally 
like six different parents that transferred their kids out of 
MLK.
    Mr. Osborne. So you went primarily by word of mouth and 
just on what other parents would say?
    Ms. Ware. Yes.
    Mr. Osborne. All right. Then I guess that brings us back to 
maybe the most common point that I've heard, and that may be 
some type of survey information. And so I would ask this of all 
the panels: Do you have any idea as to what type of survey we 
might implement? What would be the criteria? Because you 
realize that, you know, some parents--one may have heard one 
rumor, and they're going to say, Well, this is a very violent 
school, and they're going to take several documented cases. But 
do you have any way that you would advocate implementing a 
survey and that type of approach to this problem?
    Mr. Andrews. Mr. Chairman, in looking at the guidelines 
that our state department has issued, that would be, as I 
understand, triggered when and if the school was termed 
``persistently dangerous.'' The exact phrase in their guideline 
is that it would be reliable and valid--or reliable and 
verified--I forget two of those three words--survey data 
gathered from parents, employees, and students.
    And so I think we're talking about scientific polling, 
which in politics--and in market research, for that matter--we 
know it can be done to within a very high degree of certainty, 
three or 4 percentage points. And there are some costs to that. 
But again, I think the cost is money well-spent, as Congressman 
Schaffer suggested, money well-spent toward the goal of finding 
out and publicizing--finding out and publicizing what the 
people who go into these buildings every day or send their 
loved ones into these buildings every day feel and know about 
the place, not just based on anecdotes, but based on some kind 
of scientific polling survey or market research.
    Mr. Osborne. So you're advocating maybe a series of 
questions that would be asked of the parents, and you would 
have to have a statistically significant sample?
    Mr. Andrews. I think a valid sample and carefully drawn 
questions to weed out the emotional overreaction to 
overreaction. Congress has told us to look for ``persistently 
dangerous'' schools; and I think that previous testimony was on 
target in saying, Let's not overreact based on isolated 
instances. Let's look for the pattern. Let's look for the 
continuity of the danger.
    So I think the right questions and the right sample of 
parents, students, and employees can get us that data.
    Mr. Osborne. All right. Would you advocate that that be 
constructed at the state level or at the Federal level?
    Mr. Andrews. Mr. Chairman, I believe that that should be at 
the state level. I believe that almost all of these 
determinations need to be made at the state level to the extent 
that we can. I'm a pretty thoroughgoing Tenth Amendment 
Federalist, particularly as to the rights of education, which I 
don't see mentioned in the U.S. Constitution anywhere, with due 
respect to your Committee.
    Mr. Osborne. We don't worry about those things.
    Mr. Schaffer, did you have a comment?
    Mr. Schaffer. I do. I would just point out that the state's 
``report card'' and data-gathering process in Colorado is 
probably--and I've had a chance to review--sitting in your 
capacity--to review similar data-collection processes in other 
states. Colorado's really is one of the best. And the data-
collection categories that we find when it comes to safety and 
discipline are good categories and give us perhaps a head start 
in this state.
    But here again, when the difference between 1 year and 
another year can be so dramatic as a matter of--and changed as 
a result of interpretation, it just suggests that this is an 
inexact science at the moment and very difficult to get our 
hands around, but I think it charts a clear path for what needs 
to happen--not only in Colorado but throughout the country as 
well. And it comes down to the individuals reporting to the 
state as well.
    I think there's 178 school districts in Colorado. I don't 
know what that translates to in terms of the number of 
principals to fill these reports out, but it's quite a lot of 
opportunity for a difference of interpretation and in what must 
be interpreted in order to arrive at these statistics.
    Mr. Osborne. Yes.
    Ms. Zradicka.
    Ms. Zradicka. One thing that--if you were going to have a 
survey, you might have to talk with the U.S. Department of 
Education, because in their (inaudible) it says that state 
education agencies should develop objective criteria for 
(inaudible) in identifying ``persistently dangerous schools.'' 
And they say ``objective'' usually means the type of data that 
includes records and (inaudible) for bringing violence to 
school. They do include results from certain student surveys 
about issues, such as physical fights on school grounds or data 
from gang presence on school grounds. And they say in 
(inaudible) subjective information might include data-gathering 
from focus groups about community-wide perceptions of safety 
and (inaudible) information.
    So at least on the surface it looks like the U.S. 
Department of Education is focusing on (inaudible), although 
they're putting in (inaudible).
    Mr. Osborne. So you're saying that you don't think that the 
surveys would qualify under the guidelines that have been laid 
out at the present time?
    Ms. Zradicka. It mentioned ``surveys.'' It's talking about 
getting data from students as far as actual instances that 
happen--is the way that I interpret that. Now, other people may 
interpret it differently. But I think at least from the 
surface, when I read this, the focus seems to be on (inaudible) 
things that have happened, although, they do mention 
(inaudible) things. But that would be one thing that might be 
considered (inaudible)--if you considered the survey route, you 
know, having the department give some different guidelines or 
expanding (inaudible).
    Mr. Osborne. And then last. Ms. Ware, which would you put 
your faith and reliance on--the reports from other parents as 
to what's going on in the school or some type of report from 
the administration at the school as to the safety level of the 
school?
    Ms. Ware. The administration.
    Mr. Osborne. You would go with the administration in terms 
of what they said?
    Ms. Ware. Yes, I would.
    Mr. Osborne. OK.
    Mr. Andrews. Mr. Chairman, if I might just add the thought: 
As a parent--my children are beyond school age, but I also have 
a grandson that will soon go to school. It matters to me that 
if there is a climate of fear in my child's school and if you 
can find that out by surveys--when you study how New York 
cleaned up its crime problem, there was this broken-windows 
approach that they were going to start with the smallest 
incidence and send a message to the community that authority in 
law enforcement--now we're serious. And I think that is the 
message that needs to prevail in our schools. That if schools 
have even a climate of fear among the students, parents, and 
employees, that we could determine by surveys, that in itself 
is significant. It's going to stay in the way of learning that 
has to take place there.
    Mr. Osborne. I have an additional comment. Because 
obviously if you're a young person and you get slammed up 
against the locker once a week, there may not be any physical 
evidence of damage, but the internal scars are there. And it 
certainly is something that's hard to quantify. But it's very 
real, and it's very present, and it really affects the school.
    Mrs. Musgrave.
    Mrs. Musgrave. Thank you, Mr. Osborne. I would just like to 
say that on a personal level, I can very much identify with 
what you've gone through, Ms. Ware. My children are all grown 
now, but we had a couple of incidences with our children where 
two of them were beat up, so to speak--or pushed down and 
harmed. And the turmoil that goes on in the home and the things 
that we go through as parents--with the knotting in the gut, 
sending our child off to school every day--is enormous. The 
toll that it takes on the family trying to imagine your child 
in an environment where they're supposed to be learning, and 
all they're thinking about is: Is somebody going to beat me up 
today? It's a distraction that is very, very difficult to deal 
with.
    When I think about the education process, I think 
underreporting of school violence is much like what inflated 
grades did to academic rigor. Parents think that things are OK 
because their kids are getting good grades or parents think 
that the environment of the school is safe because the school 
is not classified as ``persistently dangerous.'' But I think--
and with respect to teachers and administrators and the 
Colorado Department of Education, I think that transparency 
needs to be our goal, because there's one thing that we all 
have in common: We want a good education for our children.
    You know, I don't fault the schools. I don't fault the 
Department. It's a reflection of our culture when children 
commit violent acts when they're in school. And the challenges 
that educators face today--and the administrators--are 
enormous, and I'm very appreciative of that. But when we have 
problems, we need to know about them. And we're not going to 
address those problems unless they're evident to parents and 
other members of society.
    I would just like to thank you all for your testimony, and 
I appreciate it very much. And particularly for a mother to 
come forward and talk about something that's very personal--I 
appreciate how difficult that is, and I thank you.
    Mr. Osborne. I wish to thank the witnesses for being here 
today. And if there's no further business, we stand adjourned.
    [Whereupon, at 11:44 a.m., the subcommittee was adjourned.]
    [An attachment to Ms. Zradicka's statement follows:]

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