[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                  NO CHILD LEFT BEHIND: DISAGGREGATING
                    STUDENT ACHIEVEMENT BY SUBGROUPS
                  TO ENSURE ALL STUDENTS ARE LEARNING

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

                                HEARING

                               before the

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

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             June 13, 2006

                               __________

                           Serial No. 109-43

                               __________

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



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                COMMITTEE ON EDUCATION AND THE WORKFORCE

            HOWARD P. ``BUCK'' McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California,
    Chairman                           Ranking Minority Member
Michael N. Castle, Delaware          Dale E. Kildee, Michigan
Sam Johnson, Texas                   Major R. Owens, New York
Mark E. Souder, Indiana              Donald M. Payne, New Jersey
Charlie Norwood, Georgia             Robert E. Andrews, New Jersey
Vernon J. Ehlers, Michigan           Robert C. Scott, Virginia
Judy Biggert, Illinois               Lynn C. Woolsey, California
Todd Russell Platts, Pennsylvania    Ruben Hinojosa, Texas
Patrick J. Tiberi, Ohio              Carolyn McCarthy, New York
Ric Keller, Florida                  John F. Tierney, Massachusetts
Tom Osborne, Nebraska                Ron Kind, Wisconsin
Joe Wilson, South Carolina           Dennis J. Kucinich, Ohio
Jon C. Porter, Nevada                David Wu, Oregon
John Kline, Minnesota                Rush D. Holt, New Jersey
Marilyn N. Musgrave, Colorado        Susan A. Davis, California
Bob Inglis, South Carolina           Betty McCollum, Minnesota
Cathy McMorris, Washington           Danny K. Davis, Illinois
Kenny Marchant, Texas                Raul M. Grijalva, Arizona
Tom Price, Georgia                   Chris Van Hollen, Maryland
Luis G. Fortuno, Puerto Rico         Tim Ryan, Ohio
Bobby Jindal, Louisiana              Timothy H. Bishop, New York
Charles W. Boustany, Jr., Louisiana  [Vacancy]
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York
[Vacancy]

                       Vic Klatt, Staff Director
        Mark Zuckerman, Minority Staff Director, General Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 13, 2006....................................     1
Statement of Members:
    McKeon, Hon. Howard P. ``Buck,'' Chairman, Committee on 
      Education and the Workforce................................     1
        Prepared statement of....................................     2
    Miller, Hon. George, Ranking Minority Member, Committee on 
      Education and the Workforce................................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Brittain, John C., chief counsel and senior deputy director, 
      Lawyers' Committee for Civil Rights Under Law..............    21
        Prepared statement of....................................    23
    Kuhlman, Cynthia, Ph.D., principal, Centennial Place 
      Elementary School..........................................    15
        Prepared statement of....................................    16
    Peiffer, Ronald A., Ph.D., deputy State superintendent, 
      office of academic policy, Maryland State Department of 
      Education..................................................    11
        Prepared statement of....................................    13
    Simon, Hon. Raymond, Deputy Secretary of Education, U.S. 
      Department of Education....................................     6
        Prepared statement of....................................     8


                  NO CHILD LEFT BEHIND: DISAGGREGATING
                    STUDENT ACHIEVEMENT BY SUBGROUPS
                  TO ENSURE ALL STUDENTS ARE LEARNING

                              ----------                              


                         Tuesday, June 13, 2006

                     U.S. House of Representatives

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:30a.m., in room 
2175, Rayburn House Office Building, Hon. Howard P. ``Buck'' 
McKeon [chairman of the committee] presiding.
    Present: Representatives McKeon, Petri, Castle, Johnson, 
Ehlers, Biggert, Platts, Osborne, Wilson, Porter, Kline, 
Marchant, Price, Boustany, Foxx, Kuhl, Miller, Kildee, Andrews, 
Scott, Woolsey, McCarthy, Kucinich, Holt, Davis of California, 
McCollum, Davis of Illinois, Grijalva, Van Hollen, and Bishop.
    Staff Present: Amanda Farris, Professional Staff Member; 
Ray Grangoff, Legislative Assistant; Jessica Gross, Press 
Assistant; Richard Hoar, Professional Staff Member; Lindsey 
Mask, Press Secretary; Deborah L. Emerson Samantar, Committee 
Clerk/Intern Coordinator; Toyin Alli, Minority Staff Assistant; 
Alice Cain, Minority Legislative Associate/Education; Lauren 
Gibbs, Minority Legislative Associate/Education; Lloyd Horwich, 
Minority Legislative Associate/Education; Tom Kiley, Minority 
Communications Director; Joe Novotny, Minority Legislative 
Assistant/Education; and Mark Zuckerman, Minority Staff 
Director/General Counsel.
    Chairman McKeon. The quorum being present, the Committee on 
Education and Workforce will come to order. We are holding this 
hearing today to hear testimony on, No Child Left Behind: 
Disaggregating Student Achievement by Subgroups to Ensure All 
Students Are Learning.
    With that, I ask unanimous consent for the hearing record 
to remain open for 14 days to allow members' statements and 
other extraneous material referenced during the hearing to be 
submitted into the official hearing record. Without objection, 
so ordered.
    Good morning. I would like to thank my colleagues for 
joining me here today for the second in our series of hearings 
on the No Child Left Behind Act. I extend a special note of 
gratitude to our Committee's senior Democrat, Mr. Miller, and 
the Education Reform Subcommittee's Chairman, Mr. Castle, for 
joining us and helping to spearhead this important series of 
hearings. I think all of us can agree that these hearings will 
be a tremendous asset as we approach next year's 
reauthorization of this act.
    Today's hearing will address concerns that the test scores 
of some disadvantaged and minority students are not being 
disaggregated in school and district adequate yearly progress 
calculations under the No Child Left Behind Act. Breaking down 
student achievement data by subgroups, such as African-American 
students, special education students, and limited English 
proficient students, is required by No Child Left Behind to 
ensure that academic progress is being made overall and within 
key subgroups.
    No Child Left Behind also requires that disaggregated 
subgroup data must be statistically significant and must not 
allow students to be included--must not allow students to be 
individually identified. These provisions were included in the 
law because Congress wanted to ensure that schools and 
districts were not unfairly identified based on the performance 
of a very small number of students. We also wanted to ensure 
that the privacy of all students was protected.
    While I understand that this is a complex issue, I am 
concerned that States are being allowed to establish minimum 
subgroup sizes that are too large and are thereby failing to 
disaggregate data for too many students. For instance, one 
Associated Press article cited that as many as 1.9 million 
students' test scores--that is one out of every 14 scores--are 
not being disaggregated among accountability subgroups, and 
this certainly was not the intent of Congress when we passed No 
Child Left Behind in 2001.
    My question is one I am sure I share with many of my 
Committee colleagues: How do we ensure that the maximum number 
of students have their scores disaggregated while still 
ensuring that schools and districts that are truly in need of 
additional assistance are identified as not making adequate 
yearly progress? My colleagues on both sides of this Committee 
have joined me in writing to Secretary Spellings to share our 
concerns, and I am eager to hear from Deputy Secretary Simon as 
to what steps the Department is taking to ensure this issue 
will be addressed fairly and effectively.
    I am also eager to learn more about how the disaggregation 
of student performance under No Child Left Behind is helping to 
ensure that students are learning. The ultimate goal of No 
Child Left Behind is, of course, to leave no child behind. To 
allow anything shy of that would be a huge disservice to 
students, parents, taxpayers and eventually our future. This is 
a good law worthy of our continued support as well as our 
continued scrutiny. And I am looking forward to this hearing 
and the remaining hearings in this series.
    With that, I now yield to my friend, Mr. Miller, for his 
opening statement.
    [The prepared statement of Chairman McKeon follows:]

    Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Chairman, 
                Committee on Education and the Workforce

    Good morning. I'd like to thank my colleagues for joining me here 
today for the second in our series of hearings on the No Child Left 
Behind Act. I extend a special note of gratitude to our Committee's 
senior Democrat, Mr. Miller, and the Education Reform Subcommittee's 
Chairman, Mr. Castle, for joining us and helping to spearhead this 
important series of hearings. I think all of us can agree that these 
hearings will be a tremendous asset as we approach next year's 
reauthorization of the act.
    Today's hearing will address concerns that the test scores of some 
disadvantaged and minority students are not being disaggregated in 
school and district adequate yearly progress calculations under the No 
Child Left Behind Act.
    Breaking down student achievement data by subgroup--such as 
African-American students, special education students, and limited 
English proficient students--is required by No Child Left Behind to 
ensure that academic progress is being made overall and within key 
subgroups.
    No Child Left Behind also requires that disaggregated subgroup data 
must be statistically significant and must not allow students to be 
individually identified. These provisions were included in the law 
because Congress wanted to ensure that schools and districts were not 
unfairly identified based on the performance of a very small number of 
students. We also wanted to ensure that the privacy of all students was 
protected.
    While I understand that this is a complex issue, I am concerned 
that states are being allowed to establish minimum subgroup sizes that 
are too large, and are thereby failing to disaggregate data for too 
many students. For instance, one Associated Press article sited as many 
as 1.9 million students' test scores--that's 1 out of every 14 scores--
are not being counted among accountability subgroups. And this 
certainly was not the intent of Congress when we passed No Child Left 
Behind in 2001.
    My question is one I am sure I share with many of my Committee 
colleagues: how do we ensure that the maximum number of students have 
their scores disaggregated, while still ensuring that schools and 
districts that are truly in need of additional assistance are 
identified as not making adequate yearly progress?
    My colleagues on both sides of this Committee have joined me in 
writing to Secretary Spellings to share our concerns, and I am eager to 
hear from Deputy Secretary Simon as to what steps the Department is 
taking to ensure this issue will be addressed fairly and effectively. I 
am also eager to learn more about how the disaggregation of student 
performance under No Child Left Behind is helping to ensure that 
students are learning.
    The ultimate goal of No Child Left Behind is--of course--to leave 
no child left behind. To allow anything shy of that, would be a huge 
disservice to students, parents, taxpayers, and--eventually--our 
future. This is a good law, worthy of our continued support, as well as 
our continued scrutiny. And I am looking forward to this hearing and 
the remaining hearings in this series. With that, I now yield to my 
friend, Mr. Miller for his opening statement.
                                 ______
                                 
    Mr. Miller. Thank you, Mr. Chairman, and thank you very 
much for calling this hearing to discuss a very troubling 
problem with the way that No Child Left Behind law is being 
implemented, one that undermines No Child Left Behind's central 
promise to provide an equal education to all of America's 
children.
    At its core, NCLB is a civil rights law. By holding schools 
accountable for the education of all children, the law seeks to 
close the achievement gap between white students and minority 
students. That achievement gap, which is really an opportunity 
gap, has stubbornly persisted for generations. To prove that 
the achievement gap is closing, the law requires that a State 
break down annual test results by subgroups, such as income and 
race. By disaggregating the data in this way, the school's and 
the school district's overall academic performance cannot 
obscure the problems, that specific groups of its students are 
struggling. When poor minority children are not achieving 
proficiency along with their peers, States must provide 
remedies targeted to the schools those students attend.
    The law's unyielding demands have raised expectations and, 
in many places, have raised achievement. That is why it is more 
troubling to learn that some States appear to be circumventing 
the primary goal of the law and exploiting the legal loophole 
in order to exclude from accountability the measures of scores 
of children from racial and ethnic minority groups and with 
disabilities.
    In a recent investigation, the Associated Press found that 
the test scores of nearly 2 million children were not being 
counted under the law's required racial categories. The test 
scores of nearly half of all Native American children in the 
United States are being excluded from their schools' subgroup 
data. There are scores of--so are the scores of one-third of 
all Asian children in the United States, including all 65,000 
Asian children who live in the State of Texas, and so are the 
scores of about 10 percent of black and Hispanic children 
nationwide. Overall, these test scores of black, Hispanic, 
Asian and Native American children are seven times more likely 
to be excluded from subgroup data than are the test scores of 
white children.
    It is wrong for States to exclude these children's scores, 
and it is wrong for the Department of Education to allow this 
practice. This practice undermines No Child Left Behind as a 
force for the advancement of civil rights and educational 
achievement. No Child Left Behind's philosophical roots go back 
to the Supreme Court's 1954 Brown v. Board of Education 
decision. The reason we needed No Child Left Behind in the 
first place was that, five decades after the Brown decision, 
our country still fails to offer poor minority children the 
same educational opportunities as their peers. Poor minority 
children are still more often assigned to less challenging 
classes with less qualified teachers than are higher-income and 
white students. This opportunity gap or the lack of access to 
an equal education affects academic achievement; 74 percent of 
white fourth graders read well, nearly twice the rate of black 
fourth graders. Latino and Native American fourth graders fair 
only slightly better. More than half a century after the Nation 
committed itself to education equality, fewer than half of all 
minority children can read proficiently. It was this two-class 
educational system that No Child Left Behind was intended to 
put an end to once and for all. And I am looking forward to 
hearing the testimony of Deputy Secretary Simon. In April--I 
want to put on the record that, in April, after the Associated 
Press's investigation was published, 15 Committee members wrote 
to Secretary Spellings and asked for the Department's immediate 
attention to this issue. Unfortunately, we are still waiting 
that response, and I hope that we will receive part of that 
response this morning. I look forward to hearing from all of 
the witnesses what can be done through implementation and 
enforcement of this provision to ensure the true meaning of the 
spirit of No Child Left Behind is, in fact, honored, and 
children are given the opportunity to become proficient in 
their education. Thank you again, Mr. Chairman, for convening 
this most important hearing.
    [The prepared statement of Mr. Miller follows:]

  Prepared Statement of Hon. George Miller, Ranking Minority Member, 
                Committee on Education and the Workforce

    Mr. Chairman, I want to thank you for calling this hearing today to 
discuss a very troubling problem with the way the No Child Left Behind 
law has been implemented--one that undermines No Child Left Behind's 
central promise to provide an equal education for all American 
children.
    At its core, No Child Left Behind is a civil rights law. By holding 
schools accountable for the education of all children, the law seeks to 
close the academic achievement gap between white students and minority 
students. That achievement gap--which is really an opportunity gap--has 
stubbornly persisted for generations.
    To prove that the achievement gap is closing, the law requires the 
states to break down annual test results by subgroups, such as income 
and race. By disaggregating the data in this way, a school or school 
district's overall academic performance cannot obscure problems if 
specific groups of its students are struggling.
    When poor and minority children are not achieving proficiency along 
with their peers, states must provide remedies targeted to the schools 
those students attend. The law's unyielding demands have raised 
expectations--and, in many places, achievement.
    That is why it is all the more troubling to learn that some states 
appear to be circumventing the primary goal of the law and exploiting a 
legal loophole in order to exclude from accountability measures the 
scores of children from racial and ethnic minority groups and with 
disabilities.
    In a recent investigation, the Associated Press found that the test 
scores of nearly two million children are not being counted under the 
law's required racial categories.
    The test scores of nearly half of all of the Native American 
children in the United States are being excluded from their schools' 
subgroup data. So are the scores of one-third of all Asian children in 
the U.S.--including all 65,000 Asian children who live in the state of 
Texas. And so are the scores of about 10 percent of black and Hispanic 
children nationwide.
    Overall, the test scores of black, Hispanic, Asian, and Native 
American children are seven times more likely to be excluded from 
subgroup data than are the test scores of white children.
    It is wrong for the states to exclude these children's scores, and 
it is wrong for the Department of Education to allow this practice. 
This practice undermines No Child Left Behind as a force for the 
advancement of civil rights.
    No Child Left Behind's philosophical roots go back to the Supreme 
Court's 1954 Brown vs. Board of Education decision. The reason we 
needed No Child Left Behind in the first place was that, five decades 
after Brown, our country still fails to offer poor and minority 
children the same educational opportunities as their peers.
    Poor and minority children are still much more often assigned to 
less-challenging classes and less-qualified teachers than are higher-
income and white students.
    This opportunity gap--or lack of access to an equal education--
affects academic achievement: seventy-four percent of white fourth 
graders read well--nearly twice the rate of black fourth graders. 
Latino and Native American fourth graders fare only slightly better.
    More than half a century after this nation committed itself to 
educational equality, fewer than half of all minority children can read 
proficiently. It was this two-class education system that No Child Left 
Behind was intended to put an end to, once and for all.
    I am looking forward to hearing Deputy Secretary Simon's testimony. 
In April, after the Associated Press investigation was published, 15 
committee members wrote to Secretary Spellings and asked for the 
Department's immediate attention to this issue. Unfortunately, we are 
still waiting for a response. I hope Deputy Secretary Simon is able to 
provide one.
    I also look forward to hearing from all of our witnesses about what 
can be done through implementation and enforcement of this provision to 
ensure that the true meaning and spirit of No Child Left Behind is 
honored.
    Thank you.
                                 ______
                                 
    Chairman McKeon. Thank you.
    We have a distinguished panel of witnesses here today, and 
I will begin by welcoming them and introducing them.
    First, we will hear from Deputy Secretary Ray Simon who has 
served in the position of United States Deputy Secretary of 
Education since May 26, 2005. As Deputy Secretary, he plays a 
pivotal role in overseeing and managing the development of 
policies, recommendations and initiatives that help achieve 
President Bush's education priorities, especially the No Child 
Left Behind implementation. Deputy Secretary Simon previously 
served as Assistant Secretary For Elementary and Secondary 
Education at the U.S. Department of Education. Prior to that he 
was Chief State School Officer for Arkansas for 6 years. He 
also served as superintendent of the Conway, Arkansas, School 
District from 1991 to 1997. He has been involved in education 
since 1966 when he began his career as a math teacher at North 
Little Rock High School.
    Then we will hear from Dr. Ronald A. Peiffer who is Deputy 
State Superintendent for the Maryland State Department of 
Education. Dr. Peiffer has provided leadership for policy 
development and communications for the Maryland Department of 
Education over the past decade. He has served as an educator 
for more than three decades by working as a teacher and a local 
school system administrator in Maryland with experience in 
developing local curriculum and assessment policies. Dr. 
Peiffer has provided leadership and helped develop policy for 
various aspects of the State's school accountability system 
since he joined the State Department in 1987. He also oversees 
strategic planning, policy development and communication 
efforts that reach educators, parents, the business community 
and the public.
    Next will be Dr. Cynthia Kuhlman, principal of Centennial 
Place Elementary School. Dr. Kuhlman has been an educator in 
the Atlanta Public School System for the past 28 years. During 
that time, she has had responsibilities in the areas of 
teaching, supervision and administration across the divisions 
of instruction, human resource services and finance. She is 
also a college instructor, a coauthor, a presenter at national 
conventions and a recipient of numerous awards and fellowships.
    Finally, we will hear from Mr. John C. Brittain. Brittain?
    Mr. Brittain. Brittain.
    Chairman McKeon. Brittain. The chief counsel and senior 
deputy director of Lawyers' Committee or Civil Rights Under 
Law, a position he has held since March of 2005. He has a 
background of 35 years in the legal profession, in the past 28 
years in legal education with a substantial experience in 
public interest litigation. After several years of private 
practice specializing in civil rights law, Mr. Brittain joined 
the faculty--Brittain. Brittain?
    Mr. Brittain. Yes, Brittain. Brittain.
    Chairman McKeon. Brittain. My family came from there. I 
should be able to say it.
    Joined the faculty at the University of Connecticut Law 
School where he specialized in international and domestic human 
rights. After 20 years of teaching at the University of 
Connecticut, Mr. Britain joined the faculty at Texas Southern 
University's Thurgood Marshall School of Law where he also 
served as dean for several years.
    Very distinguished panel. I would like to remind you that, 
when you begin, you will see a green light. When your time is 
running out, you will see a yellow light. When your time has 
run out, you will see a red light.
    Secretary Simon.

STATEMENT OF HON. RAYMOND SIMON, DEPUTY SECRETARY OF EDUCATION, 
                  U.S. DEPARTMENT OF EDUCATION

    Mr. Simon. Good morning, Chairman McKeon, Congressman 
Miller and members of the Committee. Thank you for inviting me 
today to discuss No Child Left Behind and the State 
accountability systems on which it relies. We start off in 
agreement. We agree with the chairman that the law has been a 
positive step forward for students, teachers, parents and 
taxpayers. We agree with Congressman Miller that the law is 
making a difference. I hope my testimony will be useful as you 
consider its reauthorization. You deserve to know whether the 
No Child Left Behind Act is working as intended, and I am here 
to report that it is.
    Across the country, test scores in reading and math in the 
early grades are rising, and the achievement gap is finally 
beginning to close. Students once left behind, I am pleased to 
say, are now leading the way, making some of the fastest 
progress. We know this because No Child Left Behind measures 
the academic performance of all students through testing, and 
we know it because the law breaks down these results by 
students' subgroup, African-American, Hispanic, students with 
disabilities, the economically disadvantaged, limited English 
proficient and more.
    This disaggregation of data, as it is known, is at the 
heart of law. It shines a bright light of accountability on all 
schools, for all parents and taxpayers to see, and it allows 
teachers to catch students before they fall behind to see where 
we are today. It is important to know where we came from. Prior 
to the law's passage, schools were not held accountable for the 
subgroups, only a handful were disaggregating data for 
accountability purposes. Reading, language arts and math 
assessments were only required three times in a student's 
entire K-12 education, and some States did not participate in a 
national assessment of educational progress.
    All that has changed. Today, parents know more, teachers 
know more, Congress knows more, and the U.S. Department of 
Education knows more. Every State and the District of Columbia 
has a school accountability plan, reading and math assessments 
and data broken down by subgroup. We are light years ahead of 
where we were 5 years ago. This data is helpful in determining 
whether we are making adequate yearly progress toward our 
primary mission of all students and grade levels in reading and 
math by 2014. This effort depends on valid and reliable 
accountability systems that accurately reflect student 
performance while protecting student privacy.
    The No Child Left Behind Act allows space to set a minimum 
number in defining a student subgroup called the N size. 
Congress recognized the need to ensure accuracy and avoid 
distortions when, to quote the law, the number of students in a 
category is insufficient to yield statistically reliable 
information. This numerical floor varies from State to State. 
Most States use an N size of about 30 to 40 students per 
school. Taken together, about 25 million more students are 
currently accounted for, a huge increase over pre-NCLB levels.
    But the question naturally arises, due to N size alone, are 
there some students being left behind? The answer is, no, even 
when, say, only four Hispanic students are enrolled in a 
school, those students' test scores may, depending on the 
student, be accounted in a second, third or fourth subgroup, 
such as limited English proficient or economically 
disadvantaged, that exceeds the minimum N size. These scores 
are also counted toward the school district's performance in 
that subgroup.
    Finally, and most importantly, in schools such as Frankford 
Elementary in Delaware and Centennial Place Elementary, 
represented by Principal Kuhlman with us today, their scores 
are reviewed individually by teachers. These teachers and those 
in thousands of schools across the country that have truly 
adopted the mission of No Child Left Behind use test results to 
guide instruction and use their individual and collective 
creativity to focus with laser-like precision to tap the 
strengths and identify the weaknesses of each child. Thus, the 
law, with built-in redundancies, partnering with creative 
teachers enable us to get as close to 100 percent 
accountability as we possibly can.
    It is a delicate balancing act to develop a State 
accountability system that is both valid and reliable or, to 
put another way, fair and accurate. That is why we have taken a 
firm stance against calls to increase N size minimums, 
approving only one State's request so far this year. We want to 
ensure children are counted in every possible way. Our goal is 
to work closely with States to maximize the inclusion of 
students in all subgroups while maintaining public confidence 
and accountability.
    To this end, the Department is planning to host a National 
Technical Assistance Conference later this year for State 
assessment and accountability directors in concert with our 
assessment and accountability comprehensive center. With full 
testing under NCLB now underway, we will work with States to 
acquire new impact data on school and student inclusion rates 
and discuss with them a process for justifying how their 
specific N size is necessary for valid and reliable results. In 
the meantime, we will continue to follow the core principles of 
No Child Left Behind as we help States leverage the law into 
approved academic performance.
    And I know I speak for the Secretary when I say that we 
look forward to collaborating with Congress as well. Thank you 
and I will be happy to answer questions at the appropriate time 
and also to inform you that the Secretary's response to the 
letter that Congressman Miller referenced will be coming to you 
this afternoon.
    [The prepared statement of Mr. Simon follows:]

     Prepared Statement of Hon. Raymond Simon, Deputy Secretary of 
                Education, U.S. Department of Education

    Good morning. Thank you for inviting me here today to discuss the 
State accountability systems designed for No Child Left Behind and, in 
particular, our efforts to work with the States to develop valid and 
reliable methods of measuring achievement and disaggregating 
achievement data by groups of students.
    I want to begin today by saying unequivocally that increasing 
accountability for students at all levels--in the school, the school 
district, and the State--is at the core of President Bush's No Child 
Left Behind reforms. In fact, NCLB was designed to shine a light on 
those students who have so often been left behind in our Nation's 
schools: African-American and Hispanic students, students with 
disabilities, students with limited English proficiency (LEP), and 
economically disadvantaged students. NCLB requires that these students 
be tested annually, that their scores be publicly reported, and that 
schools, districts, and States be held accountable for their academic 
performance. This is the only way to close achievement gaps between 
minority students and their peers and ensure that all students read and 
do math on grade level by 2014.
    State accountability plans under NCLB reflect these goals, and use 
student assessment data in reading and mathematics to determine whether 
each district and school is making adequate yearly progress (AYP) 
toward the statutory requirement of 100 percent grade-level proficiency 
by 2014. A fundamental component of AYP is looking at assessment data 
disaggregated by various subgroups based on race, ethnicity, poverty, 
disability, and limited English proficiency. A school makes AYP only if 
each subgroup--not just the overall student population--meets annual 
proficiency objectives. Before the passage of NCLB, only two States 
used disaggregated data to determine school performance under their 
accountability systems. And while we share the concern of Members of 
this Committee about the exclusion of small minority subgroups from AYP 
decisions, it is worth noting that thanks to NCLB, more than 9 million 
minority students, or 85 percent of minority students in the tested 
grades, are now included in school-level accountability determinations.
    At the same time, if we want to accelerate the progress of No Child 
Left Behind--as we must to meet the law's proficiency goals--it is 
essential to work with States to raise that percentage even higher by 
maximizing the inclusion of minority student subgroups. This effort 
will be the focus of my testimony today.
    The addition of subgroup accountability to State accountability 
systems under NCLB represented a major breakthrough for our education 
system, but the use of disaggregated data to measure AYP brought its 
own challenges. Many of you are familiar with this issue, but the 
amount of public misunderstanding is great enough that I'd like to 
briefly explain the basics.
The Use and Impact of Minimum Group Sizes, or N-Sizes
    In holding schools accountable for the performance of various 
student subgroups, it is important to design State accountability 
systems that reliably identify schools as not making AYP. Reliability 
in this case means minimizing the probability of inaccurately 
identifying a school as missing AYP or in need of improvement. Subgroup 
accountability complicates this task because the achievement of small 
groups of students can vary considerably from year to year, even when 
curricula and instruction are identical, because of sampling error 
associated with testing different groups of students. Congress 
recognized this problem when it drafted NCLB, and thus required AYP 
decisions to include specified subgroups except when ``the number of 
students in a category is insufficient to yield statistically reliable 
information.''
    States have responded to this requirement by setting minimum group 
sizes, or n-sizes, to determine how many students of a particular 
population must be enrolled in tested grades in a school for the 
assessment scores of those students, taken together, to be a reliable 
basis for making judgments about how well that population is performing 
academically. These minimum n-sizes vary considerably from State to 
State, and currently range from 5 to 52, with most States using an n-
size of 30 or 40 students. In a large State with a diverse population 
of students, subgroups in most schools may be large enough to permit a 
larger n-size, while in a smaller State with many rural schools or 
sparse and homogenous populations, even a small n-size may result in 
the exclusion of most subgroups from AYP determinations.
    It is important to understand that students are included in every 
group to which they belong. For example, a Hispanic student who is from 
a low-income family and is an English language learner would be 
included in four separate subgroups: the ``all school,'' Hispanic, 
economically disadvantaged, and limited English proficient groups. The 
potential for counting this student's achievement four separate times 
for AYP purposes reflects an intended redundancy in NCLB accountability 
systems that now permits relatively few students to be left behind in 
our education system. Thus, even if there are too few Hispanics in this 
student's school to meet the minimum group size for Hispanics, but the 
number of economically disadvantaged students exceeds the n-size, her 
assessment scores would be counted in the economically disadvantaged 
subgroup for accountability purposes.
    In addition, if there are not enough students in a particular 
subgroup at the school level to meet n-size requirements, the scores of 
these students are aggregated to the district level, where subgroup 
accountability also is an essential part of AYP determinations. For 
example, while there may be only a handful of African-American students 
in individual schools across a district--not enough to permit reliable 
measurement of school performance--aggregation of these students' 
scores at the district level will provide a clear picture of the 
district's performance in educating these students.
    Aggregation of subgroup scores to the district level is one way the 
statute deals with the challenging goal of ensuring both validity and 
reliability in State accountability systems. A valid system, which 
provides a complete picture of a school's performance by including all 
subgroups, requires a very small n-size. On the other hand, a reliable 
system, which correctly classifies schools as making or missing AYP, 
requires a very large n-size. Two researchers who looked at this issue, 
Richard K. Hill and Charles A. DePascale of the National Center for the 
Improvement of Educational Assessment, concluded that while States 
should pick a small n-size, say 10 students, to ensure validity, ``it 
would be justifiable for a State to select a minimum N of 300'' to 
ensure reliability.
Education's Decision-Making on N-Size Levels
    Clearly, setting n-size limits involves a careful balancing act, 
given the very wide range of possible options suggested by available 
research on the subject. As noted earlier, the Department has approved 
a range of State approaches, with the most commonly used n-size falling 
between 30 and 40 students. Many rural States tend to use a smaller n-
size to account for their small schools. For example, North Dakota has 
no minimum subgroup size and Maine has an n-size of 20. Some States, 
such as California, Georgia, and Washington, combine a flat number and 
a percentage of a school population as their minimum group sizes.
    When approving State requests to modify n-sizes, the Department 
looks at all the factors involved in AYP determinations, including the 
average size and diversity of the State's schools. States must provide 
data on the estimated impact of the proposed change, and the Department 
examines the effect of the change on the number of schools that still 
have subgroups included in the AYP calculation. We are taking a hard 
look at these requests this year. Most requests are for larger minimum 
n-sizes, but we also are seeing several States move toward greater 
inclusion by proposing to eliminate higher group sizes for students 
with disabilities and limited English proficient students.
    In fact, as part of our proposed regulations providing greater 
flexibility to States in measuring accountability for students with 
disabilities, States will no longer be permitted to establish different 
group sizes for separate subgroups, including students with 
disabilities and limited English proficient students. We believe that 
States now have sufficient flexibility in measuring the achievement of 
these subgroups that different group sizes are no longer justified.
    The Department also is taking a harder line on requests for larger 
n-sizes this year because these requests generally do not make sense at 
the current stage of NCLB implementation. States now are testing 
students in each of grades 3-8, which naturally improves the validity 
and reliability of decisions about school effectiveness by increasing 
the number of students tested and thus increasing the number of 
students in each subgroup. While we continue to review data and take 
into account the precedent of previous decisions, we increasingly are 
taking the position that an increase in minimum group size--i.e., 
including fewer students in subgroup accountability--does not 
contribute to universal proficiency, nor does it put kids first.
    Nevertheless, larger n-sizes may be appropriate in the overall 
context of a State's accountability system. Last year, for example, the 
State of Florida requested a change in n-size from 30 students for all 
schools to a minimum of 30 students or a figure equal to 15 percent of 
enrollment, with a cap of 100 students. This means that for a school 
enrolling 400 students, the n-size would be 15 percent of 400, or 60 
students. But for a school enrolling 1,000 students, 15 percent would 
equal 150 students, which exceeds the 100-student cap, so the minimum 
n-size for that school would be 100.
    While 100 sounds very high, it makes sense in the particular 
context of Florida, and, thus, for several reasons, the Department 
approved Florida's request. First, with some of the largest and most 
diverse schools in the Nation, many Florida schools have subgroups 
larger than 100 students. Second, because Florida bases its subgroup 
counts on all students in the school, and not just students in the 
tested grades, more schools have subgroups that meet the 100-student 
limit than would be the case in other States. And third, Florida does 
not use any other statistical adjustments to determine AYP.
    As a result of these factors, data submitted by Florida showed that 
the percentage of schools accountable for minority subgroups remained 
high, and higher than in many States with lower n-sizes. At the same 
time, these factors specific to Florida suggest that an n-size of 100 
would not be appropriate for other States that have a different mix of 
schools and a different approach to calculating AYP.
Ensuring That Accountability Systems Are Valid and Reliable
    We knew, of course, that statistical tools such as minimum group 
sizes could have the effect of moving accountability from the school to 
the district level for some minority students, particularly in small 
schools. We also know that short of instituting an n-size of ``one 
student,'' there will always be some students who are counted for AYP 
purposes only in the ``all student'' subgroup. Nevertheless, last 
April's Associated Press analysis of minority group exclusion 
reinforced our determination to more rigorously examine the impact of 
n-size limitations and do a better job of working with States to ensure 
the maximum possible inclusion of minority subgroups in school-level 
accountability decisions.
    I have already noted our reluctance to approve requests for larger 
n-sizes over the past year. This policy reflects a larger shift toward 
tightening up our oversight of NCLB accountability provisions as we 
approach full implementation of the law. We are giving greater scrutiny 
to State requests for changes to their accountability plans, including 
changes to minimum n-sizes, and we are strengthening our monitoring of 
public school choice and supplemental educational services options. To 
give one example, now that States have expanded assessments to cover 
all the grades required by NCLB, and thus are testing many more 
students, it is fair to examine more closely the impact of n-size 
limitations and other statistical tools on the inclusion of minority 
students in NCLB accountability determinations. As has been the case 
since the President signed NCLB into law, our goal is to work with 
States to maximize the inclusion of students in all subgroups while 
maintaining or increasing public confidence in State accountability 
efforts.
    In addition, we will be taking steps over the coming months to draw 
on all available expertise and research to examine how States can 
improve the validity of their accountability systems through maximizing 
student inclusion.
    As one example of this effort, the Department is planning, in 
concert with our Assessment and Accountability Comprehensive Center, to 
host a technical assistance conference later this year to help States 
improve their systems for ensuring the validity and reliability of 
their accountability decisions. This conference will provide an 
opportunity to examine more closely the impact of the wide range of 
statistical tools used by States on the overall effectiveness of their 
accountability systems.
    I am hopeful that we will be able to draw on the lessons learned 
from the planned conference, as well as other related activities, to 
provide technical assistance to this Committee as it prepares to 
reauthorize the Elementary and Secondary Education Act of 1965. I 
expect the Committee will face many of the same challenges during 
reauthorization that the Department and the States have faced in 
finding the right balance of flexibility and accountability consistent 
with the core principles of No Child Left Behind, and I know I speak 
for the Secretary when I say that we look forward to working with you 
on this task.
    Thank you, and I will be happy to answer any questions.
                                 ______
                                 
    Chairman McKeon. This afternoon did you say? We will get 
the letter this afternoon?
    Mr. Simon. Yes.
    Chairman McKeon. Thank you very much. That is great.
    Dr. Peiffer.

 STATEMENT OF RONALD A. PEIFFER, DEPUTY STATE SUPERINTENDENT, 
             MARYLAND STATE DEPARTMENT OF EDUCATION

    Mr. Peiffer. Good morning, Mr. Chairman, Congressman 
Miller, and members of the Committee. I appreciate the 
opportunity to be here representing Maryland in this very 
important discussion.
    Disaggregation of data is something that has been very 
important in Maryland's accountability system well before No 
Child Left Behind. In 1989, we had a Governor's commission that 
began an accountability system called Maryland School 
Performance Program. And by 1993, we were reporting on a 
regular basis the disaggregation by race, subgroup, special 
services subgroups and so on, including gender. We have used 
that information for an accountability system as we identified 
low-performing schools beginning in 1994. And we have 
consistently done that.
    However, under our old accountability system, we generally 
looked at schools on the average. We looked at the average 
performance, and we reported the disaggregated data, and we 
used the disaggregated data to inform the decision about low-
performing schools when we had to intervene. However, when No 
Child Left Behind came along, we were at a point where we 
needed to transition to something that was more focused and 
more surgical. And as a consequence, we moved with a Committee 
of about 200 Marylanders that we brought in, using national 
experts, to look at how we might do that, and we have developed 
what we think is a very good system.
    Our accountability system is based on the same categories 
that are provided in the Federal law. However, our N size, our 
minimum group size, if you will, is five. And we believe ours 
is probably the smallest in the country. And what that does is 
it provides, when you report, you ensure that every student 
appears that will not be--will not be capable of being 
identified. This is a statistical tool--a statistical measure I 
guess that has been in place for a number of years. It is not 
really a new measure, No. 5. However, in the area of 
accountability, it becomes a little more complicated because 
you need to make sure, as Secretary Simon said, you need to 
make sure that the number is statistically reliable and does 
not reveal students' names and identities. So we have used a 
statistical tool called the confidence interval, which is not 
unlike the plus or minus five points that you see recorded 
about poll results. And the size of the margin of error, if you 
will, around the results has a lot to do with the size of the 
group. A small group gets a large margin of error. A large 
group gets a small margin of error. As a consequence, by 
applying that to progress measures, determination for schools 
around the country, right now in the 2005 Education Week, I 
think you will find that Maryland had an AYP, about 75 percent 
of our schools making AYP. That is about the national average.
    By moving to an N-5, it did not unfairly disadvantage our 
schools. What we have also done is to use the disaggregated 
data as a part of our new funding distribution to local school 
systems. By knowing the high-risk students you have in school 
systems, school systems get additional dollars. Then, annually, 
they have to tell us in the master planning process how they 
are spending those dollars to ensure that they are targeted 
toward the students and moving away from the typical multi-
funding stream approach to funding local school systems.
    Our State dollars combined together with the Federal 
dollars allow local school systems to be very strategic about 
the way they are spending their dollars. We believe that this 
is helping. In Maryland we have had a lot of cooperation from 
our local school systems, and our schools in working with this 
had a tremendous amount of cooperation from the U.S. Department 
of Education in making sure that we could apply this in a good 
and fair way.
    Over the years and in most recent years, we have been able 
to say that some schools have paid very close attention to the 
disaggregated data and made significant changes. North Glen 
Elementary School, for example, in Anne Arundel County was, I 
believe, recently visited by the President. Their third graders 
in reading, African-American students, were performing at 
approximately 32 percent proficiently level. That is up to 93.8 
percent in this last test.
    We have other schools that are showing similar kinds of 
gains. We have other schools for which we have a lot of work 
ahead. We believe it is the right thing to do. We believe No 
Child Left Behind has really helped us go far beyond what we 
did that we thought was groundbreaking in the 1990's into an 
era where I think we are more serving the needs of each and 
every student.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Peiffer follows:]

     Prepared Statement of Ronald A. Peiffer, Ph.D., Deputy State 
Superintendent, Office of Academic Policy, Maryland State Department of 
                               Education

Introduction
    Good afternoon Mr. Chairman, Congressman Miller, Congressman Van 
Hollen, and members of the committee. Thank you for the opportunity to 
talk with you today about the importance of subgroup disaggregation and 
the minimum group size of five that Maryland uses in its system of 
reporting and accountability.
    As the Deputy State Superintendent of Academic Policy at the 
Maryland State Department of Education, I work with the Department 
staff and local school systems to develop policy in numerous areas, 
chief among them Maryland's system of school accountability. With State 
Superintendent Grasmick's strong and able leadership, Maryland 
incorporated No Child Left Behind (NCLB) into its ongoing 
accountability system, which has been in place since 1990.
Historical Perspective
    For some states, the ideas of school accountability and data-
reporting by race or other categories were not common before NCLB. But 
in Maryland, we have a long history of both that dates back to 1989, 
when the Governor's Commission on School Performance issued a report 
calling upon the Maryland State Department of Education to develop a 
comprehensive public accountability system for schools, systems, and 
the state. The report issued recommendations based on the egalitarian 
premise that all children can learn and have the right to attend 
schools in which they will succeed, no matter where they live. All 
schools, regardless of the demographic characteristics of their 
students, were to be held accountable for their students' educational 
achievement, and all children were to be given a real opportunity to 
learn equally rigorous content.
    This commitment to equal academic opportunities for ALL students 
became the premise and promise of Maryland's school-reform efforts. In 
response to the Commission's report, the Maryland State Board of 
Education established the Maryland School Performance Program, the 
first step in our action plan for revitalizing public education.
    Because we were committed to improving education for every child, 
we realized that we could not just report average achievement data. 
Reporting only average performance can mask problems among certain 
groups of students. The only way to understand whether a school is 
serving all its students well is to report achievement data by the 
student subgroups. If a school is performing at a satisfactory level 
overall but terribly among certain groups of students, then we want to 
know that, so we can begin addressing the problem.
    Thus, since the early 1990s, Maryland has reported its achievement 
data for all students and for subgroups of students, such as racial 
groups, students receiving special education services, and students 
eligible for Free or Reduced-Price meals, which is a proxy for poverty.
    Also during this time, Maryland decided upon a minimum group size 
of five for reporting student results. The minimum group size is 
admittedly small, but we believe it is essential in ensuring that 
students are ``counted'' and don't disappear from the system. We did 
not report results from groups of less than five to ensure that the 
individual student identifiers could not be devised from the publicly 
reported school-level results. This is consistent with generally 
applied statistical rules. Because Maryland at that time did not tie 
any sanctions directly to subgroup performance, there were no 
particular concerns from districts or stakeholders about the minimum 
subgroup size of five.
Maryland and NCLB
    As you know, NCLB not only requires public reporting of subgroup 
performance, it also requires states to include subgroup performance in 
their Adequate Yearly Progress calculations, thereby holding schools 
responsible for improving subgroup achievement. This was a significant 
change in Maryland, as previously we were reporting for subgroups but 
not tying it directly to consequences. We were certainly shining a 
light on achievement gaps, and putting pressure on schools to pay more 
attention to subgroups, but we hadn't yet taken the next step of 
issuing sanctions to schools and districts that were not improving 
achievement for all groups of children.
    In 2002, Maryland linked educational funding to subgroups with the 
Bridge to Excellence Act, which established a new formula for 
calculating how much money each school system receives from the State. 
Under the new formula, school systems receive additional funding for 
all students, plus additional funds based on the numbers of students 
who receive special education services, have limited English 
proficiency, or qualify for free or reduced-price meals. By 2008, 
public schools will receive more than 1.3 billion in additional 
funding.
    In order to receive the funding, each of Maryland's 24 school 
systems is required to prepare a Master Plan for approval by the State 
Board of Education. This Master Plan must document the school system's 
goals and strategies for improving achievement among all groups of 
students, including students receiving special education services, 
students with limited English proficiency, and students who qualify for 
free and reduced-price meals, and other groups.
    In preparing Maryland's response to NCLB, we had many discussions 
around minimum group size. As you know, the minimum group size is the 
size at which a group of students ``counts'' toward Adequate Yearly 
Progress. For example, a very high minimum group size, such as 100, 
would mean that schools would not be accountable for any group smaller 
than 100 students. In Maryland, such a scenario would ensure schools 
would never be responsible for anything other than average student 
performance. The subgroups essentially would disappear from the 
accountability system.
    This was not what we wanted for Maryland. Our chief concern was in 
identifying a group size that would ensure we were including all 
students. As I mentioned before, Maryland has a long history of 
reporting subgroup data. We wanted to continue our push for higher 
achievement for all groups of students. Therefore, we did not want to 
pick a group size that was so high that subgroups in hundreds of 
schools across the state would disappear.
    However, it was also important to us that the Adequate Yearly 
Progress determinations be accurate. We certainly did not want schools 
to be identified for significant consequences such as restructuring 
based on the performance of a handful of students if such action was 
not warranted. We knew that we needed to balance what was fair and 
appropriate for schools with what was the right thing to do for 
children.
    In the end, we found the balance we were looking for by keeping our 
minimum group size of five and adding a confidence interval.
Confidence Interval
    As you know, in order to be making Adequate Yearly Progress under 
NCLB, schools and districts must meet the annual targets in reading and 
math. These annual targets increase each year until all students attain 
proficiency in 2013-2014.
    You are probably familiar with the concept of Confidence Interval 
as it applies to survey and poll results. The plus or minus margin of 
error that is cited along with poll results is analogous to our 
Confidence Interval.
    As it applies to NCLB and school accountability, the confidence 
interval is a range of scores around the annual target. As long as the 
subgroup scores at the lowest point in the confidence interval range, 
it will be considered to have met the annual target. For example, if a 
school's annual reading goal is to have 50% of students at proficient, 
the confidence interval for a particular subgroup might be from 40% to 
60%. As long as the subgroup's score is in the confidence interval 
range, then the subgroup has achieved the annual goal.
    Confidence intervals protect schools from the small margin of error 
that is inherent in every measurement system. They do this by providing 
a cushion around the annual target. The size of the cushion varies 
according to the size of the group. The smaller the group, the larger 
the interval. The larger the group, the smaller the interval. As long 
as the group performs within the confidence interval, it will be 
considered to be meeting the annual target.
    Maryland's minimum subgroup size of five is small, but it is at 
that point that the confidence interval, the cushion if you will, is at 
its largest. So, even though we are reporting and holding schools 
accountable for small subgroup sizes, we are giving schools some leeway 
in achieving the targets.
    We instituted the Confidence Interval not just because it was the 
right thing to do for schools, which it is, but because it is an 
appropriate thing to do statistically. When assessment groups are 
small, the performance or absence of just a few students can have a 
dramatic effect on the average score. The statistical help provided by 
the Confidence Interval allows us to have a good level of confidence 
that the decisions made about low-performing schools are fair and 
accurate.
Conclusion
    By applying a Confidence Interval, Maryland has been able to 
maintain a small minimum group size of five, thus ensuring that 
subgroups of students are not disappearing from the accountability 
system. At the same time, we're protecting schools from erroneous 
identification for sanctions due to subgroup performance.
    A few years ago, there was some anxiety on the part of local 
districts about the consequences of a small minimum group size. 
However, once implementation began in earnest, the districts saw the 
value of the small group size. They now appreciate being able to assure 
parents that students are included in the accountability system and 
that subgroup performance is not being swept under the rug.
    Thank you for the opportunity to discuss Maryland's use of subgroup 
disaggregation, minimum group size, and Confidence Interval. I look 
forward to providing any additional information you may need or 
answering any questions you may have.
                                 ______
                                 
    Chairman McKeon. Thank you very much.
    Dr. Kuhlman.

  STATEMENT OF CYNTHIA KUHLMAN, PH.D., PRINCIPAL, CENTENNIAL 
                    PLACE ELEMENTARY SCHOOL

    Dr. Kuhlman. Good morning, Mr. McKeon, Congressman Miller. 
It is my pleasure this morning to be here to discuss the 
disaggregation of student achievement by subgroups to ensure 
that all children are learning.
    As principal of Centennial Place Elementary School in 
Atlanta Public Schools, I have been very proud of our progress 
in making sure that all children are learning at a very high 
level of proficiency and that we are closing achievement gaps.
    This morning I would like to talk a little bit about 
background information of our school, some of our interventions 
and also specific information about student achievement by 
subgroups. Our school opened in August 1998. It replaced a very 
low-performing school that had operated for years in that 
community and was part of an overall community revitalization 
effort. We have 520 students; 95 percent are African-American; 
4 percent other minorities; and 1 percent white. We are a Title 
I school with 60 percent of our students receiving free or 
reduced lunch.
    Our school serves a wonderful new housing development that 
was funded by a HOPE VI grant. It replaced a very deplorable 
housing project, Techwood and Clark Howell Homes in midtown of 
Atlanta, and it is 40 percent public housing subsidized, 20 
percent low income and 40 percent market rate housing. We also 
serve two shelters for homeless women and children and 
families, over 120 students a year from these shelters but no 
more than 30 at a time due to the transience rate. We also 
serve a little home ownership community near Georgia Tech 
University, and in addition to that, one-third of our students 
come to Centennial Place by choice.
    We have a number of wonderful businesses in our community 
that also pay close attention to the progress of the school, 
the Coca-Cola Company, Sun Trust Bank, Holland & Knight law 
firm, Georgia Tech University, Georgia State University, with a 
high level of participation and community involvement.
    Some of our interventions: We have school uniforms. That 
helps us with the management of the wonderful economic 
diversity that we celebrate. We also have a year-round 
calendar. We start school in mid-July and end in mid-June and 
do 9 weeks on, 3 weeks off, with required remedial course work 
during the break periods for students who aren't meeting 
standards and wonderful enrichment classes for those that are. 
We do an extended day program, and we do thematic teaching and 
project-based learning.
    We have a very exciting science-focused curriculum that 
keeps children actively engaged in learning. We also spend 
considerable time with other subjects like foreign language. 
All of our students take Spanish every day. And we have a heavy 
arts integration with the help of our partners at Georgia Tech, 
Georgia State, the Robert Ferst Center for the Arts and the 
Atlanta Symphony Orchestra. Our kids attend interactive week-
long workshops with artists such as Chuck Davis. They have gone 
to the Ferst Center to play Yo-Yo Ma's cello. And I say all 
this to say that exciting learning in standards-based education 
is an important variable.
    Three years ago, in 2003-2004, we recognized that our two 
subgroups of black students and economically disadvantaged 
students were making exactly the level of progress that we 
expected, 90 percent or better proficiency. We were very 
disappointed, and thanks to No Child Left Behind reporting data 
by subgroups, that our students with disabilities were not 
achieving commensurate to the other students. So we took it 
upon ourselves to initiate a number of variables, including 
more collaboration with teachers, more focused modifications in 
the testing and more professional development for the teachers, 
to bring up that performance. And we have noticed an increasing 
closing of the gap that exists with our students who have 
disabilities. So we are leveling out on all playing fields now.
    I want to end with just one nice story about our students 
who had attended Fowler before we existed, and there was a 
depressing story that never had a Fowler student attended 
Georgia Tech University despite the fact that it was right at 
our back door. Well, this year, I just attended our first 
graduating group of students; our first fifth graders finished 
high school this year. And they were represented on the program 
and on the stage with honor society ribbons, high financial 
scholarships to colleges, straight As, grade point averages 
above 90 percent, and next year, we do anticipate our first 
student graduating from high school and attending Georgia Tech. 
So we have made a lot of progress, and we are appreciative to 
No Child Left Behind for the increased rigor that Georgia will 
implement with its new standards and for the public 
presentation of disaggregated data by subgroups.
    Thank you, and I look forward to answering your questions.
    [The prepared statement of Dr. Kuhlman follows:]

  Prepared Statement of Cynthia Kuhlman, Ph.D., Principal, Centennial 
                        Place Elementary School

                                        Atlanta, GA, June 13, 2006.

    Good morning Mr. Chairman and members of the Committee. Thank you 
for the opportunity to speak with you this morning about disaggregating 
student achievement by subgroups to ensure that all students are 
learning. It is an honor for me to represent our school, Centennial 
Place Elementary, as well as our dedicated stakeholders throughout our 
community. As principal of Centennial Place, I am very proud of our 
progress toward eliminating an achievement gap among our subgroups and 
maintaining high standards and expectations for achievement by all 
students. In my allocated time, I hope to provide for you a description 
of our school and community, some important background information 
about the changes that have taken place over the past ten years and a 
general analysis of our student achievement results. I will conclude 
with an anecdotal comment about the longitudinal progress that our 
students have experienced over the eight years of our existence as the 
new Centennial Place Elementary School.
School and Community Information
    Centennial Place Elementary School is a child-centered, community-
based themed school that focuses on Science, Mathematics, and 
Technology. The school draws its student population from the Centennial 
Place neighborhood and surrounding communities including two shelters. 
The students bring a multiplicity of diversities in cultures, 
languages, socioeconomic status and customs.
    The school's mission is to build a learning culture that provides a 
positive, personal educational experience for each child. We actively 
engage a community of learners in science, mathematics, and technology 
so that they become problem solvers, critical thinkers, effective 
communicators and life-long learners. Visitors to Centennial see a 
school where children are self-directed, engaged in spontaneous 
learning, and facilitators in project-based/hands-on learning 
activities. In addition, children are becoming conscientious protectors 
of the environment, becoming fluent in a second language, participating 
in rich opportunities for arts integration and becoming proficient in 
the sensible use of technology.
    Our teaching staff accepts the decision-making responsibilities 
involved in molding the minds of the future. Visitors see teachers who 
are empowered to make decisions about implementing an all inclusive, 
spiraling curriculum that fosters higher order critical thinking 
skills, best practices, and inquiry learning. Such empowerment promotes 
a curriculum that improves daily decision-making, collaboration, 
professional development, and differentiated instruction to meet 
individualized student needs.
    Centennial Place has a strong community and parental support system 
where active involvement is encouraged and expected. The school's 
governance model offers families and the community a voice and an 
opportunity to participate in the decision-making process at the 
school. Our visitors see a school where parents are actively engaged in 
meaningful support of the instructional program. Parents participate in 
parent workshops, action learning and on-going research and assessment. 
Most importantly, parents adhere to the contractual agreement that is 
crucial to student success.
    In the Centennial Place School community, successful business 
corporations and higher education institutions share our vision for a 
'break-the-mold school.'' They have committed to supporting the 
curriculum by volunteering, tutoring, and mentoring. Our community 
stakeholders include: the Coca-Cola Company, the Georgia Institute of 
Technology, Sun Trust Bank, Georgia Natural Gas Company, Publix 
Supermarket, the YMCA, the Atlanta Housing Authority, the Integral 
Group (Community Collaborative Team), Georgia State University, the 
Atlanta Symphony, the Georgia Protection Division, the Georgia 
Aquarium, and the law firm of Holland & Knight. These partners are 
committed to the belief that the school exists to serve the child and 
that each child will be a successful learner.
Background Information
    The Learning Village idea for Centennial Place was conceived by a 
coalition of Atlanta Public Schools educators, university leaders, and 
community business stakeholders. This coalition was committed to 
creating an urban-community school that could intervene by resolving 
contradictions, shattering barriers, and providing a world-class 
education for urban youth. The Learning Village concept is grounded in 
a commitment of inclusion and opportunity for an entire generation of 
children. The ultimate goal of this unification is to create a pipeline 
beginning at Centennial to feeder middle school (Inman) and high school 
(Grady) and ultimately ending with our students enrolling into the 
Georgia Institute of Technology.
    The birth of Centennial Place Elementary was a result of teachers 
at the then Fowler Elementary School and community leaders realizing 
that the school would need to make changes in order to meet the needs 
of the transforming community. Fowler Elementary school served the then 
Techwood/Clark Howell community, which was one of the oldest public 
housing projects built under Franklin Roosevelt. For many years the 
community was an impoverished area plagued with drugs and gang activity 
was rampant. Fowler was considered the ``safe haven'' for children in 
grades K-5. It provided students with standards-based learning. 
Parental involvement was minimal. Those parents who did become involved 
were dedicated to making a difference but their impact was not 
significant enough to cause change. The administrators and teachers 
that worked at Fowler were committed to changing the perception of 
student failure in this low-economical setting. They worked together to 
implement several initiatives that guided instruction and the 
governance of the school. Some of these were the Special Instructional 
Assistance (SIA) program which was a theme based program that offered 
hands-on instruction in grades K-2 only, the Project Impact program 
which was a systematic approach to teaching mathematics, the Science 
Initiative in grades four and five, and the Writing to Read program in 
grades Kindergarten and first.
    Several businesses in the area recognized the need to support the 
community elementary school because of the challenges students from 
impoverished areas face. Some of these partnerships included: The Coca 
Cola Company, the Georgia Institute of Technology, and Georgia State 
University. These partnerships offered resources as well as a mentoring 
program for students. Although Fowler seemed to have all the right 
ingredients, the test scores as well as the perception of the faculty, 
staff, parents and the community stakeholders indicated that there was 
still a need for a more systematic approach to ensure the success of 
all students throughout the school. Changes were occurring not only in 
the community but also in education and the school and the community 
began to set the foundation for meeting the needs of students in the 
changing global world.
    On June 30, 1995, Atlanta Public School Board members hosted a 
luncheon in the President's Conference Room at Georgia Tech with Dr. 
Ben Canada, Superintendent for Atlanta Public Schools (APS). 
Representatives from the Center for Education Integrating Science, 
Mathematics, and Computing (CEISMC) and members from the Georgia 
Institute of Technology's (Georgia Tech) office for Minority Education 
Development (OMED) met to discuss the opportunities for developing a 
state-of-the-art elementary school to replace the current Fowler 
Elementary School. This school was to be built on a new location in the 
community on Luckie Street between a new YMCA building and the Carnegie 
Library, a Historic Registry edifice.
    The proposed new Centennial Place community would involve 
redevelopment of the devastated urban area with Hope VI federal funds, 
a federal housing program begun under President Ronald Reagan with the 
aim of redeveloping blighted public housing projects and helping 
residents become homeowners. Centennial Place was planned as an 
innovative inner-city concept that includes individuals and families 
living seamlessly in subsidized housing along with middle income 
families in non-subsidized housing. The community includes a mixture of 
town homes and apartment homes both rental and ownership, 40 percent of 
which are reserved for public housing clients, 20 percent for low-
income residents, and the rest designated for at-market prices. Central 
to the success of this concept would be the school serving as the 
catalyst that would attract residents, especially families, to the 
community. Approximately $1 billion was invested in the five-mile 
radius of the new and old school. Approximately $100 million was to be 
invested in the development of this mixed income community composed of 
the new school, YMCA, a supermarket, new housing, and the rest of the 
community.
Student Achievement
    Since opening in August of 1998, we have seen continual improvement 
with our test scores. The percentage of students not meeting 
expectations has decreased. We believe the targeted assistance by 
tutors and ``real world contexts'' have positively impacted our overall 
scores. We have not only met our Superintendent's targets five years 
but have also met AYP six consecutive years earning us the distinction 
as a Title I Distinguished School. During the 2003-2004, we received an 
award from Education Trust Foundation for ``Dispelling the Myth'' with 
student achievement and economic diversity and continue to be 
recognized as a model school through The Achievement Alliance.
    The school sets forth clear and high expectations for student 
learning. They address academics as well as behaviors and habits of 
mind. The entire community works relentlessly to ensure that all 
students meet these expectations and succeed at the highest possible 
level, and that no student falls through the cracks. For example, we 
recognized the need to provide periodic reviews for instruction on a 
timelier basis and a year-round calendar with quarterly remediation and 
enrichment opportunities was adopted. In addition to our year-round 
calendar, we have implemented an extended day program to increase the 
instructional day, hence, increasing time-on-task by focusing on 
specific skills. Because of the diversity of socio-economic backgrounds 
of students at Centennial Place, all stakeholders voted to accept our 
school uniform initiative. We continually monitor progress to identify 
and assist those students in need of special help. Our process includes 
rigorous data analysis; the creation of individualized student profiles 
with attendance, grades, standardized scores, and interventions; 
implementing student instructional plans based on profiles; and 
utilizing ongoing authentic assessments benchmarking progress.
    Students who qualify for the Program for Exceptional Children (PEC) 
are served in an interrelated model at Centennial. The In-School Team 
(IST) develops an individualized education plan (IEP) for each student 
designating the amount of pull-out time and/or collaborative services 
necessary. The plan is developed to target each student's needs as well 
as differentiating instruction for the various learning styles. The 
interrelated and classroom teacher identify the objectives from the new 
Georgia Performance Standards that most closely align with the Georgia 
Criterion Reference Competency Test (CRCT) to aid in developing 
individualized instructional plans for the interrelated classroom. Some 
plans call for the interrelated teacher to provide services through 
consultation with classroom teacher concerning the individual student's 
needs. The classroom teacher and the interrelated teacher collaborate 
to create benchmarks and develop assessment strategies to provide 
interventions for the student to meet grade level standards. The IEP is 
monitored quarterly as determined by the teacher and yearly as 
determined by the IST to make sure that the testing addendum for 
student is amended if appropriate. In addition, the School Testing 
Coordinator remains abreast of allowable accommodations from the state. 
Examples of strategies to improve reading/language arts may include but 
are not limited to: concept mapping for comprehension, CORE strategies 
with phonics and decoding skills, and one-on-one instruction. The 
interrelated teacher and administrators participate in school visits to 
monitor high achieving schools where PEC has been successful.
Summary
    At Centennial Place, we have welcomed the opportunity to comply 
with The No Child Left Behind Act. Prior to this important legislation, 
Centennial Place stakeholders developed a vision and mission that 
sought to dispel any myths that poor and minority students could not 
achieve commensurate with other young Americans. At Centennial Place, 
we have two subgroups mandated by NCLB--Black Students and Economically 
Disadvantaged Students. With these subgroups, we have not only narrowed 
the achievement gap, but we have also maintained a consistently high 
level of performance among all groups of students. In 2004-2005, all 
subgroups maintained a 90 percent or higher proficiency level on all 
tests.
    Our subgroup of Students with Disabilities, while large enough to 
report results, is not large enough to legally require a performance 
standard for Adequate Yearly Progress. When we noticed in 2003-2004, 
that we had a significant achievement gap with our students with 
disabilities performing far below their non-disabled peers, we were 
determined to make significant changes and improvements. The changes 
included increased collaboration among regular and special education 
teachers and parents, allowable modifications in test administration 
included in the IEP, narrowing the scope and increasing the depth of 
instruction for specific standards and tracking individual student 
progress very carefully. These modifications were extremely effective 
in helping us achieve our desired outcomes. During the 2004-2005 school 
year, we nearly doubled the percentage of students with disabilities 
who were proficient in all subjects.
    Georgia's standards are in the process of revision to be made more 
rigorous, which means making AYP will be a little more difficult. We 
support the new more rigorous standards and have confidence that our 
children and teachers are up to the challenge.
Conclusion
    I want to conclude by again thanking you, Mr. Chairman and members 
of the committee, for allowing me to share our story with you this 
morning. I promised to conclude my presentation with an anecdotal story 
about our students' longitudinal progress over the past eight years. 
When we first opened our school in 1998, we were haunted by a story 
that no student from Fowler had ever attended the Georgia Institute of 
Technology. The children grew up literally across the street from one 
of the most prestigious science and technology institutions in the 
south, but none had been admitted. Moreover, Fowler students were not 
going to any colleges or universities. Last week, I had the pleasure to 
attend the Grady High School graduation ceremonies to observe our first 
fifth grade class of students as they graduated from high school. Our 
Centennial Place students were proudly represented in the printed 
program and on the stage for distinguished honors such as scholarships 
to prestigious universities around the country, Hope Scholarships to 
Georgia universities, memberships in the National Honor Society, GPA's 
of 90 percent or higher and subject area awards for straight A's or 
Outstanding Distinction in the Subject Area. We are also anticipating 
the strong possibility that one of our students, who will graduate from 
high school next year, will indeed attend the Georgia Institute of 
Technology.

                  ATLANTA PUBLIC SCHOOLS: CENTENNIAL PLACE ELEMENTARY ADEQUATE YEARLY PROGRESS
                            [Student data-subgroups; 100% participation rate thruout]
----------------------------------------------------------------------------------------------------------------
                                        Full academic
                                       year students w/        Black           Students w/        Economically
                                            scores                             disabilities      disadvantaged
----------------------------------------------------------------------------------------------------------------
2005-2006 Reading/Lang. Arts*.......      222 students       205 students        26 students       119 students
    Basic/does not meet.............             13.1%              13.9%              34.6%              18.5%
                                           29 students      28.5 students         9 students        22 students
    Proficient/meets................             61.3%              62.4%              55.8%              64.7%
                                          136 students       128 students      14.5 students        77 students
    Advanced/exceeds................             25.7%              23.7%               9.6%              16.8%
                                           57 students      48.5 students       2.5 students        20 students
    Meets & exceeds.................             86.9%              86.1%              65.4%              81.5%
                                          193 students     176.5 students        17 students        97 students
----------------------------------------------------------------------------------------------------------------
2004-2005 Reading/Lang. Arts........      209 students       198 students        23 students       127 students
    Basic/does not meet.............              4.3%               4.0%              15.2%               5.5%
                                            9 students         8 students       3.5 students         7 students
    Proficient/meets................             47.4%              49.7%              56.5%              53.9%
                                           99 students      98.5 students        13 students      68.5 students
    Advanced/exceeds................             48.3%              46.2%              28.3%              40.6%
                                          101 students      91.5 students       6.5 students      51.5 students
    Meets & exceeds.................             95.7%              96.0%              84.8%              94.5%
                                          200 students       190 students      19.5 students       120 students
----------------------------------------------------------------------------------------------------------------
2003-2004 Reading/Lang. Arts........      223 students       212 students        17 students       134 students
    Basic/does not meet.............                6%                 6%                47%                 8%
                                           14 students        13 students         8 students        11 students
    Proficient/meets................               46%                47%                38%                55%
                                        101.5 students       100 students       6.5 students      73.5 students
    Advanced/exceeds................               48%                47%                15%                37%
                                        107.5 students        99 students       2.5 students      49.5 students
    Meets & exceeds.................               94%                94%                53%                92%
                                          209 students       199 students         9 students       123 students
----------------------------------------------------------------------------------------------------------------
2005-2006 Mathematics...............      222 students       205 students        26 students       119 students
    Basic/does not meet.............              6.3%               6.8%              19.2%               7.6%
                                           14 students        14 students         5 students         9 students
    Proficient/meets................               64%              65.9%              69.2%              73.1%
                                          142 students       135 students        18 students        87 students
    Advanced/exceeds................             29.7%              27.3%              11.5%              19.3%
                                           66 students        56 students         3 students        23 students
    Meets & exceeds.................             93.7%              93.2%              80.8%              92.4%
                                          208 students       191 students        21 students       110 students
----------------------------------------------------------------------------------------------------------------
2004-2005 Mathematics...............      209 students       198 students        23 students       127 students
    Basic/does not meet.............              9.6%               9.6%                13%              10.2%
                                           20 students        19 students         3 students        13 students
    Proficient/meets................             69.9%              72.2%              82.6%              72.4%
                                          146 students       143 students        19 students        92 students
    Advanced/exceeds................             20.6%              18.2%               4.3%              17.3%
                                           43 students        36 students          1 student        22 students
    Meets & exceeds.................             90.4%              90.4%                87%              89.8%
                                          189 students       179 students        20 students       114 students
----------------------------------------------------------------------------------------------------------------
2003-2004 Mathematics...............      223 students       212 students        17 students       134 students
    Basic/does not meet.............               11%                12%                59%                16%
                                           25 students        25 students        10 students        21 students
    Proficient/meets................               63%                64%                41%                67%
                                          141 students       136 students         7 students        90 students
    Advanced/exceeds................               26%                24%                 0%                17%
                                           57 students        51 students         0 students        23 students
    Meets & exceeds.................               89%                88%                41%                84%
                                          198 students       187 students         7 students       113 students
----------------------------------------------------------------------------------------------------------------
2005-2006 Science...................      222 students       205 students        26 students       119 students
    Meets & exceeds.................               96%                96%                85%                95%
                                          213 students       196 students        22 students       113 students
    Advanced/exceeds................               23%                21%                12%                13%
                                           52 students        43 students         3 students        16 students
----------------------------------------------------------------------------------------------------------------
2004-2005 Science...................      209 students       198 students        23 students       127 students
    Meets & exceeds.................               97%                97%                96%                98%
                                          203 students       193 students        22 students       124 students
    Advanced/exceeds................               25%                22%                17%                19%
                                           52 students        44 students         4 students        24 students
----------------------------------------------------------------------------------------------------------------
2003-2004 Science...................      223 students       212 students        17 students       134 students
    Meets & exceeds.................               94%                94%                53%                92%
                                          210 students       199 students         9 students       123 students
    Advanced/exceeds................               24%                22%                 0%                16%
                                           54 students        47 students         0 students        21 students
----------------------------------------------------------------------------------------------------------------
2005-2006 Social Studies............      222 students       205 students        26 students       119 students
    Meets & exceeds.................               95%                95%                92%                93%
                                          212 students       195 students        24 students       111 students
    Advanced/exceeds................               23%                22%                 8%                13%
                                           52 students        45 students         2 students        15 students
----------------------------------------------------------------------------------------------------------------
2004-2005 Social Studies............      209 students       198 students        23 students       127 students
    Meets & exceeds.................               97%                97%                96%                96%
                                          203 students       193 students        22 students       122 students
    Advanced/exceeds................               21%                18%                 9%                14%
                                           43 students        36 students         2 students        18 students
----------------------------------------------------------------------------------------------------------------
2003-2004 Social Studies............      223 students       212 students        17 students       134 students
    Meets & exceeds.................               95%                95%                65%                93%
                                          212 students       201 students        11 students       125 students
    Advanced/exceeds................               22%                21%                 0%                15%
                                           50 students        45 students         0 students        20 students
----------------------------------------------------------------------------------------------------------------
*The GPS based CRCT for Reading & Lang. Arts in 2005-2006 is an entirely new and different test. Both the
  content and the performance standards have changed. Consequently, performance on these new tests cannot be
  meaningfully compared to results from previous years. Results should be regarded as a new ``Baseline'' for the
  new GPS based tests.

                                ------                                

    Chairman McKeon. Thank you.
    Mr. Brittain.

    STATEMENT OF JOHN C. BRITTAIN, CHIEF COUNSEL AND DEPUTY 
    DIRECTOR, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

    Mr. Brittain. Good morning, Mr. Chairman, Ranking Member 
Miller, and other members of the Committee.
    Since the Lawyers' Committee's inception in 1963, we have 
advocated on behalf of children of color. The title of this 
hearing aptly describes the critical need from a civil rights 
perspective for school districts to publicly disclose data on 
the performance of specific groups of students, particularly 
those who have been the historic victims of discrimination. The 
Lawyers' Committee recommends that the Committee provide for 
the continuation of the disaggregation of the data. In 
addition, to fix the N size loophole problem, the Committee 
should consider proposing legislation that continues to provide 
the States with discretion. However, it would set a maximum 
limit on the number of excluded students. If the States do 
exclude certain students, it should review the data on the 
excluded students to determine the level of efficiency. In all 
cases, of course, the excluded student should receive the 
maximum remedial measures to aid those in need of improvement 
and to expand upon their learning opportunity.
    From the perspective of advocates for educational equity 
and improvement, data on the performance of school districts in 
the aggregate and performance of groups of students in 
particular groups is so crucial to the extent of measuring the 
scope of inequality as well as the hopeful evidence that some 
schools are making improvements. Therefore, the civil rights 
legal organization, joined with the professional educators in 
promoting the transparency and the disaggregation of data on 
student achievement.
    Mr. Chair, I don't see the countdown on my monitor. How 
much time do I have left?
    Chairman McKeon. Two minutes.
    Mr. Brittain. Thank you. No Child Left Behind, to a certain 
extent, has forced very difficult political choices for some 
States. They can either improve education or they can lower the 
bar. Unfortunately, No Child Left Behind has created a lot of 
unintended consequences. No Child Left Behind in some States 
has been interpreted to mean, no State shall look bad, in terms 
of their annual yearly progress. To comply with the goals of No 
Child Left Behind, to increase those student learning and 
achievement scores, some States could either improve education 
or they could lower the bar of success. Given sometimes the 
principle that a rational actor often tends to choose the 
course of least resistance, some State education authorities 
have opted to lower the bar or omit data to look good because 
this choice offers less resistance than improving the product 
of education in the schools.
    The N size controversy demonstrates that some States have 
taken advantage of the legal loopholes in No Child Left Behind. 
We can certainly stipulate that some States may be justified in 
not considering a small number of students' scores, for 
example, where the subgroup is truly too small to yield 
statistically valid results on the accountability purposes. 
However, it is nothing short of unconscionable that such large 
numbers and percentages of African-American, Latino, Native 
American students, as you described in your opening remarks, 
are left behind. And we will not go into detail about the 2 
million students who were not counted across this Nation.
    So, in conclusion, when students don't score--when 
students' scores don't count and their schools continue to make 
annual progress, students are denied their statutory rights and 
benefits under No Child Left Behind. If No Child Left Behind is 
going to fulfill its promise as a civil rights education 
program of this generation, aggressive steps must be taken by 
States and by the Federal Government to ensure that students 
who are the primary intended beneficiaries of Title I are not 
ignored in the end.
    I would like the privilege, Mr. Chair, to supplement my 
testimony with two additional documents: A memo of law--a 
memorandum of law that the NAACP and the Lawyers' Committee 
filed in the case entitled Connecticut v. Spellings, pending in 
the Federal Court in Connecticut, and I would also like to 
introduce a set of news clippings regarding the pending 
application of the NAACP to intervene in that case concerning 
No Child Left Behind to provide a complete record of my 
testimony here today.
    [The prepared statement of Mr. Brittain follows:]

Prepared Statement of John C. Brittain, Chief Counsel and Senior Deputy 
        Director, Lawyers' Committee for Civil Rights Under Law

Introduction
    The Lawyers' Committee for Civil Rights Under Law wishes to thank 
the Honorable Howard P. ``Buck'' McKeon, Chairman, and the Honorable 
George Miller, Ranking Member, and the members of the Committee on 
Education and the Workforce for giving me the opportunity to testify 
today about the importance of ``Disaggregating Student Achievement by 
Subgroups to Ensure All Students Are Learning.''
    Former President John F. Kennedy started the Lawyers' Committee 
over forty-two year ago when he summoned two hundred and fifty of the 
top lawyers in the nation to provide pro bono legal assistance in civil 
rights cases. Our core mission is to ensure equality for primarily 
racial and ethnic minorities in education, housing, voting, employment, 
minority businesses, environmental justice and community development.
    We have a long history in litigation and public policy advocacy on 
behalf of children of color. I was honored to come to the Lawyers' 
Committee last year as Chief Counsel and Deputy Director, after a 
thirty-seven year career in academia and public interest practice with 
expertise in school desegregation and educational equity. In addition 
to serving as chief counsel and deputy director for the Lawyers' 
Committee, I also direct our Education Project.
    Recently, the Lawyers' Committee filed a motion to intervene in a 
well publicized federal lawsuit by the State of Connecticut against the 
Secretary of Education, Margaret Spellings, and the United States 
Department of Education regarding the No Child Left Behind Act (NCLB) 
on behalf of the State Conference of the NAACP and several individual 
plaintiff parents and their school age children, who attend low-
performing Title I schools in Hartford. See Appendix A and B.
    The Lawyers' Committee is a member of the Leadership Conference on 
Civil Rights, which supported many of the provisions in NCLB and 
supported final passage, as well as full funding. The Lawyers' 
Committee has not examined or taken a position on each and every 
provision of NCLB, however, and like most organizations, there may be 
provisions in the law we determine should be improved in the next 
reauthorization. We look forward to reporting back to the House 
Committee on Education as we progress in our process of reviewing 
implementation of the law, as well as the statutory, regulatory and 
enforcement barriers to full realization of NCLB's promise.
    The title of this hearing aptly describes the critical need, from a 
civil rights perspective, for school districts to publicly disclose 
data on the performance of specific groups of children, particularly 
those who have been historic victims of unequal educational 
opportunities.
The Promise of NCLB
    The NCLB Act joins generations of legal efforts to secure equal 
educational opportunities for racial and ethnic minorities, poor and 
other disadvantaged schoolchildren. The journey in the modern era began 
with Brown v. Board of Education aimed at dismantling the dual system 
of de jure segregation. That quest continued with equal financing suits 
to eliminate disparities in funding between property rich and poor 
school districts that relied heavily on property taxes to fund local 
education. More recently, a new generation of adequacy funding suits 
seek to make the state pay for the standard of education that is 
guaranteed by law. All of these efforts are designed to produce 
equality in theory, as well as in the output of educational 
achievement.
    Amidst this backdrop, the NCLB Act became the federal government's 
means to ensure the highest level of educational attainment, 
particularly for low income and under performing children. From the 
perspective of advocates for educational equity and improvement, data 
on the performance of school districts in the aggregate and the 
performance of groups of students in the disaggregate provide crucial 
information on the extent and scope of inequality, as well as hopeful 
evidence that some schools are improving. Therefore, civil rights legal 
organizations join with many professional educators in promoting the 
transparency and the disaggregation of data on student achievement.
    NCLB's premise is that all children can learn and are capable of 
becoming proficient in reading and math. Further, NCLB's promise is 
that all schools will provide the quality teaching, curriculum aligned 
to standards, and resources needed to make good on this goal by the 
year 2014. This may seem like too little time for school boards and 
school officials at the state and local level. But for children and 
their parents consigned to low-achieving schools, like those in 
Hartford, the timeline in NCLB is not soon enough. For example, the 
entire Hartford School District has ``failed to make 'adequate yearly 
progress' under NCLB and has been identified by the State as a district 
``in need of improvement'' under Title I.'' See Memorandum of Law In 
Support of Motion To Intervene on Behalf of Connecticut State 
Conference of the NAACP and Minority Parents And Students In 
Connecticut (``Motion To Intervene'') at 4, Connecticut v. Spellings, 
No. 3:05-CV-01330 (D. Ct. Jan. 30, 2006). While NCLB promises to ensure 
that all schools will provide all students with a quality education by 
the year 2014, for students who attend school in the Hartford School 
District, 2014 is much too late. As it stands now, these children 
attend substandard schools that are failing to provide them with an 
education that will enable them to compete on a level playing field 
with other students in the state, the nation and the world. Motion To 
Intervene at 12. In fact, if conditions in the failing schools in 
Hartford, Connecticut, and other cities throughout the country, are not 
improved immediately, there is little chance that students forced to 
attend these failing schools will have a realistic opportunity to 
succeed in school or in life.
The Importance of Disaggregated Student Achievement Data
    Simply put, when test scores are not broken down by race, income 
and other important categories, our nation's wide and unacceptable 
achievement gaps are covered up. When minority students don't count, 
there is little incentive for schools to pay attention to their needs. 
Schools are able to boast of successes even when their minority, low-
income, or disabled students are barely able to decipher words or solve 
simple math problems.
    When these historically underserved groups of students do count, 
achievement gaps are exposed and schools can no longer slide by, or be 
considered successful when they fail to properly educate their minority 
students. Again, using Connecticut as an example, while 88% of white 
fourth grade students in Connecticut are considered proficient in math, 
only 56% of African-American Connecticut fourth grade students are 
considered proficient in math. See Summary of Student Achievement on 
the Connecticut Mastery Test, available at www.cmtreports.com/iReport/
Report.aspx . Similarly, while 76% of white fourth grade students are 
considered proficient in English only 41% of African-American fourth 
grade students are considered as such. Id.
    When minority students' scores count, educators know they must 
educate all students to high standards, and they can be empowered to do 
so. Robust reporting of achievement data can provide educators with 
tools to identify the individual students and groups of students who 
most need their help. Parents have information not only on their own 
child's achievement, but on how that achievement compares to his/her 
subgroup within the school, the school as a whole, the school district 
and the state. Parents can shop for schools, if they are able, with 
better ``consumer information.'' They can decide whether to try to take 
advantage of NCLB's transfer provisions if their child is in a school 
``in need of improvement.'' And parents, acting together or through 
organizations like the NAACP in Connecticut, can organize and pressure 
their state and local officials to do a better job in improving their 
schools and ensuring the high-quality teachers and resources they need 
to succeed.
History of Disaggregated Student Achievement Data Under Title I
    Beginning in 1994, Congress required disaggregation of student 
achievement data on state assessments required under Title I. This 
measure was not originally included in the legislative drafts of the 
bill in the House or the Senate, including the bill proposed by the 
Clinton Administration. Under the visionary leadership of members of 
this Committee, however, including that of Rep. Major Owens (D-NY), 
Rep. Xavier Becerra (D-CA) and other members of the Black and Hispanic 
Caucuses, joined by members on both sides of the aisle, Congress agreed 
to require all schools, school districts and states receiving Title I 
funds to disaggregate student achievement data as follows:
    Within each State, local educational agency, and school by gender, 
by each major racial and ethnic group, by English proficiency status, 
by migrant status, by students with disabilities as compared to 
nondisabled students, and by economically disadvantaged students as 
compared to students who are not economically disadvantaged.

Improving America School's Act of 1994, Pub. L. No. 103-382, Sec. 1111 
        (b)(3)(I), 108 Stat. 3518, 3525 (1994).
    However, two problems arose with this new provision: 1) the federal 
government and the states were reluctant to impose real accountability 
on schools and school districts for the actual progress of any of the 
subgroups, and 2) many states did not report complete, user-friendly 
data disaggregated by the required categories. As a result, while there 
was some increase in the availability of data on achievement gaps, 
there was very little encouragement to work toward actually closing 
them.
    In the NCLB of 2001, however, there was strong bipartisan consensus 
that overall scores, or averages, should not be allowed to obscure the 
large achievement gaps between poor and non-poor and minority and 
majority students. Thus, both the accountability and the reporting (or 
``report card'') requirements were tightened.
    The result has been greater transparency, and in many schools, 
greater attention to closing the gaps and improving educational 
opportunity for groups of students historically ``left behind.''
The NCLB Undercount: the Recent ``N'' Size Controversy = ``Gaming the 
        System''
    The recent reports by the Associated Press on the so-called ``N'' 
size issue reflect one of a number of ways states have tried to ``game 
the system,'' according to Dianne Piche of the Citizens' Commission on 
Civil Rights.1 See Appendix C. The ``N'' size refers to the minimum 
number of students needed in a subgroup before that subgroup's scores 
are counted for purposes of determining ``adequate yearly progress'' 
(``AYP'') under NCLB.
    NCLB has forced states to make some difficult political choices: 
they can either improve education or lower the bar. Unfortunately NCLB 
has created a law of unintended consequences. The No Child Left Behind 
Act has been interpreted to mean, ``No State Wants to Look Bad'' in 
terms of annual yearly progress. To comply with one of the goals of 
NCLB, to increase learning for all students, states have narrowed their 
strategies to two logical choices--improve the quality of education or 
lower the bar for satisfying state goals set on standardized tests. 
Given a further scientific principle that a rational actor often tends 
to choose the course of least resistance, many state education 
authorities have opted to lower the bar or omit data to look good 
because this choice offers less resistance than improving the product 
of education in the schools. See James E. Ryan, Article, The Perverse 
Incentives of the No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 947-
48 (2002). The ``N'' size controversy demonstrates that some states 
have taken advantage of a legal loophole in NCLB.
    Congress did not prescribe a minimum ``N'' size in the law, or even 
an acceptable range. Rather, the law leaves it up to the states to set 
their ``N'' size (as well as other accountability requirements) and to 
submit their accountability plans to the Secretary of Education for 
approval. The regulations issued by the Department of Education, 
provide in relevant part:
            Sec. 200.7 Disaggregation of data.
    (c) Inclusion of subgroups in assessments. If a subgroup under Sec. 
200.2(b)(10) is not of sufficient size to produce statistically 
reliable results, the State must still include students in that 
subgroup in its State assessments under Sec. 200.2.
    (d) Disaggregation at the LEA and State. If the number of students 
in a subgroup is not statistically reliable at the school level, the 
State must include those students in disaggregations at each level for 
which the number of students is statistically reliable--e.g., the LEA 
or State level.
Improving the Academic Achievement of the Disadvantaged, 67 Fed. Reg. 
        71709 (December 2, 2002) (codified at 34 C.F.R. Sec. 200.7).
    We can stipulate that there may be some justification for not 
considering a small number of students' scores, for example, where a 
subgroup truly is too small to yield statistically valid or fair 
results for accountability purposes. But, it raises reasonable 
suspicion that some states are trying to permit schools and districts 
to evade their responsibilities when the minimum ``N'' sizes range from 
5 students in a subgroup in the state of Maryland to up to 100 students 
in California. Moreover, the Center for Education Policy, which has 
been tracking NCLB implementation, reported that 23 states moved to 
increase their minimum ``N'' size in 2004-05.2 Finally, we are not 
aware of any states that have moved to decrease their ``N'' size 
recently in order to enhance accountability for their subgroups.
    However, it is nothing short of unconscionable that such large 
numbers and percentages of African-American, Latino and Native American 
students' scores are ``left behind.'' For example, the AP series 
reported:
     Nearly 2 million students across the nation have scores 
that were not counted.
     The vast majority of these students were minority 
students. Less than 2 percent of white students' scores were excluded 
at the school level, while about 10% of African American and Latino 
students' sores were left out of AYP subgroup calculations. Over 1/3 of 
Asian students' scores and just under 1/2 of Native American students' 
scores were excluded.
     Nearly 400,000 students' scores were excluded in 
California where the ``N'' size can be as large as 100 students. 
African American students may be numerous enough to be counted in 
schools elsewhere in the country, but because of the state's excessive 
minimum group size rules, in many parts of this diverse state, we found 
that their scores are not counted at the school level.
    When students' scores don't count and their schools continue to 
make AYP, students are denied statutory rights and benefits under NCLB. 
Take California, for example. If NCLB is going to fulfill its promise 
as the civil rights education program of this generation, aggressive 
steps must be taken by states and the federal government to ensure that 
the students who are the primary intended beneficiaries of Title I are 
not ignored.
Conclusion
    In conclusion, I recommend that NCLB maintain the full provisions 
for disaggregation of data. In addition, to fix the ``N'' size loophole 
problem, the Committee should consider proposing legislation that 
continues to provide states with discretion, but sets a maximum limit 
on the number of excluded students. In addition, if the state excludes 
a minimum number of students from testing, it should review the data on 
the excluded students to determine their level of proficiency. In all 
cases of excluded students, school districts should use remedial 
measures to aid those students in need of improvement.
                               appendix a
    Not Getting Left Behind, WASH. POST, Feb. 5, 2006, at B06, 
available at http://www.washingtonpost.com/wp-dyn/content/article/2006/
02/04/AR2006020400915--pf.html.
Not Getting Left Behind
    It's been a long time in coming, but at least a few of President 
Bush's opponents are beginning to see the potential of his No Child 
Left Behind legislation. Thanks to the law, which requires states to 
assess children annually and to break down the results by minority 
group and income level, it has for the first time become possible to 
track which schools are failing which students. More important, the law 
also requires states to turn schools around and help them succeed.
    True, neither the Lawyers' Committee for Civil Rights Under Law nor 
the NAACP, two of the organizations that are beginning, cautiously, to 
see the possibilities of the law, is exactly advertising its support. 
But last week, the Connecticut chapter of the NAACP did quietly come 
down on the side of Education Secretary Margaret Spellings, who is 
being sued by Connecticut over some of the act's provisions. The 
state's politicians are angered by Ms. Spellings's refusal to waive 
some of the No Child law's requirements--specifically, the state wants 
to test its children every other year, instead of every year--and they 
contend that the law doesn't provide the necessary funding to allow 
states to meet its requirements.
    Civil rights lawyers point out that this line of argument could 
enable states not to comply with other laws, among them the Civil 
Rights Act, which was also ``unfunded.'' But John Brittain, chief 
counsel to the Lawyers' Committee, goes further, noting that 
Connecticut, although the wealthiest state in the country, also has the 
biggest achievement gap between white and minority students. ``Children 
deserve those annual assessments,'' he says, so that they can be given 
the help they need. In terms of its goals and intent, if not its 
implementation, he also calls No Child Left Behind potentially the 
``greatest civil rights education statute that has ever been passed.''
    These are brave statements: Not all civil rights advocates will be 
pleased to see the Connecticut NAACP joining a lawsuit on the same side 
as the Bush administration. They may also be too radical for much of 
the Democratic Party. In his response to the State of the Union speech 
last week, Virginia Gov. Timothy M. Kaine (D) repeated his party's 
line, claiming the act is ``wreaking havoc on local school districts.'' 
The NAACP needs to drag its friends around to its point of view. By 
helping to fine-tune and implement the law instead of constantly 
running it down, Democratic politicians, child welfare advocates and 
teachers unions could help fix broken school systems as well. A profile 
of once-disastrous, now-successful Maury Elementary School in 
Alexandria by The Post's Jay Mathews last week showed what can be 
achieved if teachers and administrators use the law well. It's an odd 
idea, getting the Democrats to embrace a Republican project. But if 
they are brave enough to do it, thousands of inner-city children will 
be better off.
                               appendix b
    Jeff Archer, Civil Rights Groups Back NCLB Law in Suit, EDUC. WEEK, 
Feb. 8, 2006, available at http://www.edweek.org/ew/articles/2006/02/
08/22conn.h25.html.
Civil Rights Groups Back NCLB Law in Suit

  Connecticut NAACP files to intervene on side of Bush administration.

                             By Jeff Archer

    Civil rights groups are seeking to join the federal government in 
defending the No Child Left Behind Act from a legal challenge by 
Connecticut, potentially giving the Bush administration important, if 
unlikely, new allies in arguing for the law.
    The Connecticut NAACP, on behalf of three minority students in 
high-poverty schools, filed papers in federal court in New Haven, 
Conn., on Jan. 30, asking the judge in the Connecticut v. Spellings 
case to allow the group to intervene on the side of the U.S. Department 
of Education.
Connecticut v. Spellings
            Connecticut Makes Oral Arguments
    Connecticut filed a lawsuit in August charging that the No Child 
Left Behind Act is an unfunded mandate. A judge told state Attorney 
General Richard Blumenthal last week to get more documentation for the 
state's case.
Civil Rights Groups Weigh In
    Four civil rights groups, including the Connecticut NAACP and the 
national office of the NAACP, last week sought to join the U.S. 
Education Department in defending the No Child Left Behind Act. Dennis 
C. Hayes, the general counsel for the national NAACP, explained that 
allowing Connecticut to opt out of the federal law's test requirements 
would set a dangerous precedent for other states.
    Also providing legal support for the effort are lawyers from three 
national groups: the Citizens' Commission on Civil Rights and the 
Lawyers' Committee for Civil Rights Under Law, both based in 
Washington; and the national office of the NAACP in Baltimore.
    Scot X. Esdaile, the president of the Connecticut NAACP, said the 
filing should not be read as an endorsement of the federal government's 
handling of the education law, but rather as an attempt to ensure that 
the voices of poor and minority students are heard in the case.
    ``If you want to get at the table, you have to choose a side,'' he 
said. ``On this particular issue-not on all the intricacies of the law-
we choose to stand on the side of the federal government.''
    Calling the No Child Left Behind Act an illegal ``unfunded 
mandate,'' Connecticut Attorney General Richard Blumenthal filed suit 
against the Education Department in August, after the agency refused to 
grant the state waivers from some of the law's testing provisions. 
(``Connecticut Files Court Challenge to NCLB,''  Aug. 31, 2005.)
    Connecticut education officials say that assessing students in 
grades 3-8, as the law requires, will cost $8 million more than federal 
officials are providing. The state has tested only in grades 4, 6, and 
8, as well as grade 10, and it questions the education value of 
expanding its assessments.
Bad Precedent?
    Dennis C. Hayes, the general counsel at the National Association 
for the Advancement of Colored People's Baltimore headquarters said 
allowing Connecticut to opt out of such a critical part of the federal 
law would set a dangerous precedent by encouraging policymakers 
elsewhere to do the same.
    ``If we view No Child Left Behind in terms of civil rights, then we 
are concerned about a state begging to be excused from participating or 
complying with an act intended to help disadvantaged people,'' he said.
    Signed into law by President Bush in early 2002, the No Child Left 
Behind Act seeks to hold schools and districts accountable for student 
performance, particularly among those students traditionally seen as at 
risk of academic failure.
    Civil rights leaders have been split in their views of the law. 
While agreeing with its goals, some argue that it relies too heavily on 
test scores and stigmatizes low-income students. Others see it as an 
effective way to redirect resources to needy students.
    Lawyers for some of the groups seeking the intervention say they 
still have concerns about the law, but they worry about letting a state 
off the hook for improving student achievement.
    Although Connecticut's overall student performance is among the 
highest in the country, the achievement gaps between its minority and 
white students are some of the widest in the country, by some measures.
    ``The key question is about the accountability of state and local 
officials for the progress of students,'' said William L. Taylor, who 
chairs the Citizens' Commission on Civil Rights and is a long-time 
desegregation lawyer.
    Specifically, the Connecticut NAACP asked in its motion last week 
to become a defendant in the suit, along with the U.S. Education 
Department. Should the judge grant that, and the case moves forward, 
the civil rights lawyers from each of the groups could then argue 
against Connecticut's suit in court.
    John R. Munich, an Atlanta-based lawyer who has followed the case, 
said the result could be that a suit over who pays for what would 
concentrate more than it would otherwise on the educational needs of 
the law's intended beneficiaries.
    ``It adds an extra dimension to the lawsuit, and I assume what the 
civil rights groups will try to do is focus on the impact of NCLB on 
children,'' said Mr. Munich, a partner at Sutherland, Asbill, and 
Brennan LLC, which often represents states in education finance cases.
No Decision on Dismissal
    Reacting to last week's motion, Chad Colby, a U.S. Education 
Department spokesman, said, ``We're encouraged by their support.''
    But Connecticut Attorney General Blumenthal said in a statement 
that he regretted that he and the NAACP, ``are on different legal sides 
when we share the basic goals of No Child Left Behind.''
    Gary Orfield, the director of the Civil Rights Project at Harvard 
University and a critic of the way the NCLB law has been carried out, 
called it ``unwise'' for civil rights leaders to have taken the action.
    ``I think it's important that they be specific and limit their 
targets, and don't allow themselves to be used as allies to enforce a 
law that really has serious, counterproductive effects on schools that 
serve minorities,'' he said.
    Last week's action came as U.S. District Judge Mark R. Kravitz, who 
is presiding over the case, heard oral arguments from both the state 
and the federal government on a motion by the latter to dismiss the 
case. The civil rights groups also filed papers in support of the call 
for dismissal.
    Any expectation of a speedy decision on whether to dismiss the case 
was swept away on Jan. 31 when Judge Kravitz told Mr. Blumenthal to 
amend his complaint with new information about the minimum cost of 
putting in place the additional testing required by the NCLB law.
    The Education Department argues that Connecticut's estimates of 
what it will cost to meet the requirements include a testing regimen 
more expansive than what the law requires.
    Mr. Blumenthal has until Feb. 28 to file the additional documents, 
after which the federal government will have 30 days to respond. By 
then, Connecticut plans to have administered the additional tests at 
the heart of the dispute.
    Both sides also have until the end of this month to comment on the 
Connecticut NAACP motion to intervene.
                               appendix c
    Lynn Olson and Linda Jacobson, Analysis Finds Minority NCLB Scores 
Widely Excluded, EDUC. WEEK, Apr. 26, 2006.
Analysis Finds Minority NCLB Scores Widely Excluded

                    By Lynn Olson and Linda Jacobson

    The federal government is permitting many schools to escape 
accountability for the progress of racial or ethnic subgroups under the 
No Child Left Behind Act, according to a computer analysis released by 
the Associated Press last week.
    Under the law, signed by President Bush in 2002, schools must meet 
annual performance goals for their student populations as a whole and 
for specific groups of students. Those groups include racial and ethnic 
minorities and students who are from low-income families, speak limited 
English, or have disabilities-as long as enough students in each 
category meet minimum group sizes set by each state and approved by the 
U.S. Department of Education.
    Schools receiving federal Title I aid that miss the targets, known 
as adequate yearly progress, or AYP, for two or more years are subject 
to increasingly serious consequences.
    But, according to the AP's analysis, the minimum group, or ``N,'' 
sizes set in many states are so large that schools aren't being held 
accountable for the subgroup performance of some 1.9 million students 
who fall into various racial or ethnic categories in calculations of 
AYP.
    While Louisiana will count a subgroup once it has 10 students, for 
example, in California each subgroup must have at least 50 students and 
make up 15 percent of students tested in the school. (Once a California 
subgroup has at least 100 students, it no longer has to meet the 15 
percent minimum.)
    In most cases, schools must still publicly report the subgroup 
performance of students, even if it doesn't meet the size for counting 
that group in AYP calculations. All of the scores are supposed to be 
included in calculating whether a school's student body as a whole has 
met its AYP targets.
    ``I do think that states have gamed the system,'' said Dianne M. 
Piche, the executive director of the Citizens' Commission on Civil 
Rights, an advocacy group based in Washington. ``What we learned from 
this is that minority students are much more likely not to be counted 
than white students.''
    State officials countered that even when students' test scores 
aren't counted for subgroup accountability in a racial or ethnic 
category at the school level, they still may be counted in another 
category, and in subgroup results at the district level.
    ``Just because they're not included in the ethnic group, [it] 
doesn't mean they're not in the English-language-learner group,'' said 
Pat McCabe, the director of policy and evaluation for the California 
Department of Education.
    ``We're a big state, and we have a lot of students,'' he said. 
``They made it sound like we're hiding the kids.''
    According to the AP, the achievement scores of more than 400,000 
minority students in California are not being counted by their racial 
or ethnic categories at the school level when determining AYP results.
Minority Reporting
    To arrive at a nationwide estimate of how many students are not 
included in racial or ethnic subgroups in calculating AYP at the school 
level, the Associated Press, a news-gathering cooperative, used 2003-04 
school enrollment figures collected by the federal government and the 
current minimum ``N'' sizes approved for each state.
    The AP analyzed enrollment for each school in grades 3-8 and in 
grade 10, because the law requires states to test students annually in 
grades 3-8 and at least once in high school for purposes of calculating 
progress. The analysis focused only on the law's five major racial and 
ethnic categories: white, black, Asian, Native American, and Hispanic. 
It did not examine students in other categories, such as those with 
disabilities, to avoid double-counting students who fall into multiple 
categories.
    It found that the scores for fewer than 2 percent of white children 
nationally aren't being counted as a separate category in calculating 
AYP at the school level. In contrast, Hispanic and black students have 
roughly 10 percent of their scores excluded from subgroup 
accountability, as do more than one-third of Asian students and nearly 
half of American Indian students.
    Chad Colby, a spokesman for the U.S. Department of Education, said, 
``It's something that [Secretary of Education Margaret Spellings] is 
going to look into.''
    But he noted that before enactment of the law, an overhaul of the 
Elementary and Secondary Education Act, only a handful of states were 
even reporting test scores broken down by racial and ethnic subgroups, 
something they routinely do now.
    Based on the AP's own analysis, Mr. Colby added, about 93 percent 
of students are included both in a school's overall population and in a 
racial or ethnic category for purposes of calculating AYP.
    ``I will be seeking from Secretary Spellings detailed information 
about this problem and about what steps she and her department are 
taking to correct it,'' said Rep. George Miller of California, the 
ranking Democrat on the House Education and the Workforce Committee.
    The provision in the law was meant to ensure that judgments made 
about schools are statistically valid and reliable. But Ross Wiener, a 
principal partner with the Education Trust, a Washington-based advocacy 
group that has strongly supported the law, said, ``If we were really 
looking to achieve those goals, there would be much more consistency 
across states.'' He suggested the Education Department convene experts 
to craft more uniform guidelines.
                                endnotes
    \1\ Citations to some of the AP stories:
     2 million scores ignored in 'No Child' loophole, THE 
ASSOCIATED PRESS, Apr. 17, 2006, http://www.msnbc.msn.com/id/12357165/
from/ET/.
     Nicole Ziegler Dizon, Ben Feller, and Frank Bass, States 
Omit Minorities' School Scores, THE ASSOCIATED PRESS, http://
www.washingtonpost.com/wp-dyn/content/article/2006/04/17/
AR2006041700677.html.
     Nicole Ziegler Dizon, No Child Loophole Masks Achievement 
Gap for Black Students, THE ASSOCIATED PRESS, Apr. 17, 2006, http://
www.belleville.com/mld/belleville/news/politics/14362964.htm.
     No Child Left Behind, WALL STREET JOURNAL, available at 
http://online.wsj.com/article/
SB114626648623739377.html?mod=googlenews--wsj.
    \2\ Lynn Olson, Shifts in State Systems for Gauging AYP Seen As 
Impeding Analysis, EDUCATION WEEK, Nov. 30, 2005; Center on Education 
Policy, From the Capital to the Classroom: Year 4 of the No Child Left 
Behind Act (2006).
                                 ______
                                 
    Chairman McKeon. No objection. Those documents will be 
included in the record.
    Has roll been called? We have just been called to the floor 
to vote, and if we can ask you to be patient with us, we have a 
couple of votes, and we will return in about 20, 25 minutes. So 
the Committee will stand in recess then until the conclusion of 
those votes. Thank you.
    [Recess.]
    Mr. Osborne [presiding]. If we could please resume seats, 
etc.
    I apologize for the delay. The Chairman misrepresented the 
length of time, you will notice. And we are now ready for 
questions, and I will start.
    As you know, we have 5 minutes to ask our questions and get 
your answers in so we can try to be--make the interchanges as 
rapidly as possible with respect to this.
    And let me start with you, Secretary Simon. The whole N 
size thing concerns me. I am not saying I disagree with it, but 
I am not sure I totally grasp it, and I am not sure I totally 
grasp the mathematics of it. Since you were a math professor, 
math teacher, maybe you can help me with this. And Dr. Peiffer 
has indicated Maryland may be the smallest N size at five. I 
think my State, Delaware, is 40. But then there are percentages 
in some of these States that make it a lot larger.
    It seems to me the whole concept of No Child Left Behind 
and, as Mr. Miller said, in addition to it being an education 
act, it is a civil rights act as well as it is to educate 
everybody. And when you have these differing group sizes 
regardless of the size of the particular school or the class, 
it seems to me it begs the possibility that there are more kids 
being left behind when you get your N sizes or disaggregated 
group sizing too large. Or is the algebra or math of this such 
that I am not correct in terms of what I am saying? And I will 
have some follow-up questions, but let us just start with that. 
I mean, these are basically State plans in which the Department 
of Education is allowing a substantial amount of variance, and 
my question to you is, why?
    Mr. Simon. I think we have to go back to when the law was 
first created. In 2003, when the plans were due, this was brand 
new for States and for the Department. In terms of these plans 
and how to make the plans fair and reliable, make them fair to 
the States as well as make them fair to children, we were 
breaking new ground, and so in the correct, I think, haste to 
get these accountability plans in, we tried to make that 
balance, the right tension between what was fair to schools and 
States and what was fair to kids.
    In the interim, we have had about half of the States since 
2003 request a change in their N size. Many, I will have to 
tell you, we have said, no, to on their first request. So the 
final approval that you see on their official plan changes were 
many times a result of negotiation with them from an initial 
request.
    We look at a lot of information when we determine an N 
size. We don't just say, well, because State X has 40, then you 
are automatically going to get 40. We have ask, in every 
instance when there has been a change request for an N size, we 
ask for impact data. We ask it from the school level. How many 
schools will this impact in terms of getting subgroups out of 
accountability? We look at the size of the school. We look at 
the distribution of kids. We look at the racial balances. We 
look at a lot of things, and we make the State justify to us 
how that is going to make their plan as reliable as it can be.
    Now, that having been said----
    Mr. Osborne. Not to interrupt you. Why don't we just have 
one number for everybody? I mean, playing devil's advocate, why 
not just say, it is 30 for everybody or whatever it may be?
    Mr. Simon. Simply because the States----
    Mr. Osborne. Thirty or less.
    Mr. Simon. The States, in terms of how they organize their 
schools, some States have very small schools, and an N size of 
30 is not appropriate. It would be too big. It would let all 
kids out of accountability, all subgroups out of 
accountability. Other States, such as Texas and California, 
they have schools of over 1,000 or 2,000 kids. The size of 30 
probably wouldn't be reliable enough for a school that large. 
So we look at, again, individuality of how the State schools 
are organized.
    Now, that having been said, starting this year with the 
latest rounds of requests for changes of N size, we had, I 
believe, 10 States request to increase an N size. We have not 
granted any of those. We granted one, and that was to Alaska, 
and what they were doing was getting--they had higher N sizes 
for their special ed and LEP kids. So we agreed on a compromise 
where their normal or their regular N size was raised a little, 
but their LEP and special ed N size was dropped. So now they 
are on a consistent N size. That is the only approval we have 
had this year. We basically said, no, with the--with this past 
year being the watershed year, if you will, in terms of all 
grades being tested, this is the first year every State has all 
grades tested.
    Mr. Osborne. Let me bring Dr. Peiffer in on this.
    Maryland is a relatively small State but has some fairly 
large schools. Do you agree with this? Or do you have a very 
different vantage? Not that I am trying to pitch you against 
each other. I am just curious on your views of the N size, 
particularly in light of what Maryland has done.
    Mr. Peiffer. For Maryland, it was a logical choice in the 
respect we had been using an N-5 during the 1990's with their 
old accountability system, and transitions over to No Child 
Left Behind, it really didn't create a concern here.
    Now, our schools we have a relatively dense population. It 
is a small State, 890,000 students perhaps. Our schools, 
particularly in the suburban areas and urban, are relatively 
large, but we felt that even with those, we are finding that 
some schools might have elementary schools that might have 40 
special education students, and 40 would eliminate that 
subgroup, and in many cases, as far as the special services 
subgroups, that would be the largest of them. So we felt a five 
pretty well represented what we wanted to do with schools.
    Mr. Osborne. OK. I still have to work this out in my own 
mind. I am not disagreeing with anything anybody has said here. 
I just want to make sure I understand that. I guess I just have 
this concept that you could have an N size that is, at least 
for most schools, would be a workable number at a certain cap. 
Of course, if I had my way, I might even have a national 
standard exam to go along with all this, too, but that is a 
whole other issue you probably don't want to get into today, 
but I think it is an important subject in terms of our review 
as far as what the authorization's going to do. And Secretary 
Simon, I am concerned in what some of these applications are 
for these schools you are turning down, et cetera. Not State by 
State, but just in general, what you are looking for? And why 
you are making the decisions at the Department that you are? 
And I have a lot of faith in what you all do over there, so I 
would be interested in knowing about that. But my time is up 
and let me yield 5 minutes to Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman.
    Mr. Simon, toward the end of his testimony, Mr. Brittain 
States that when students' scores don't count and their schools 
continue to make AYP, students are denied statutory rights and 
benefits under No Child Left Behind. Is that accurate?
    Mr. Simon. Yes, sir. I would agree with that.
    Mr. Miller. So what happens to these students now that they 
don't count?
    Mr. Simon. I want to respectfully disagree that they do 
count. As I indicated before, in many cases, these students 
are----
    Mr. Miller. Does not the status of the school trigger a 
series of events in terms of interventions and theoretically 
additional funding that flows to those schools because of the 
status of that school?
    Mr. Miller. Sure. Yes.
    Mr. Miller. When I look at the competition for school 
dollars in school districts, certainly big diverse districts, 
that status may prove to be a relief to somebody who is 
apportioning dollars to schools because, theoretically, they 
are AYP, and you have other schools that aren't AYP, and you 
have to do some triage.
    Mr. Simon. That is important to us. We want to make sure if 
a school is identified, it truly is an improvement. If it is a 
false positive, we don't want that either.
    Mr. Miller. Identified as AYP because of the N number, and 
those students may not get the right tutoring, may not get the 
transfer, may not get mentoring, may not get additional flows 
of money that are targeted from the national act to those 
schools that are schools in need.
    Mr. Brittain, is that accurate?
    Mr. Brittain. Yes. Precisely, Congressman Miller. That is 
what we are complaining about, that the whole set of 
interventions are not made available, including the basic 
notice that they may have a right to tutors; they may have a 
right to transfer. Many nonperformance schools, they have a 
right to a whole set of other aid, special circumstances.
    Mr. Miller. That is how we wrote the law in the beginning. 
We were trying to close a gap, and the remedial services and 
hopefully revenues would be made available to schools to--
because now you have identified a cohort of students that are 
in need of help.
    Mr. Peiffer, this was touched upon by Mr. Castle, but you 
obviously have made--you have overridden the idea of how this 
is unreliable if you have five students in a school of 800 or 
900.
    Mr. Peiffer. When we look at the subgroup--my apologies. 
When we look at the subgroups, we use the confidence interval 
statistic so we are not being unduly fair--unduly harsh on the 
school, so it is if a very, very small subgroup, we would 
accept a target a little bit lower than their normal target for 
AYP for that year. If it is a small group. If it is a very 
large group, it is pretty much on target for the year. So that 
is--that the statistical allowances we have put in place have 
helped people feel it has been pretty fair.
    Mr. Miller. It would seem to me that there is a very high 
burden on the Department of Education in accepting an N group 
that is of any substantial size because if this starts to 
appear to be fairly arbitrary--I appreciate the rationales, but 
the acts and the numbers seem to be fairly arbitrary. If that 
is the case, then you have the Department of Education denying 
fundamental and basic services that have been designed to help 
the achievement of these children, from those children getting 
those services, because it sets the status of the school which 
triggers the following actions. Does that seem to follow?
    Mr. Simon. Well, as I indicated before, we say, no.
    Mr. Miller. I know you say no. I am wondering what you said 
yes to.
    Mr. Simon. Again, in the case--in the case that we just 
heard here, they have a confidence interval that goes along 
with the five. Five is extremely low, and we always sing their 
praises for having an N size that low. That is commendable. 
Don't get me wrong.
    Mr. Miller. Is it possible you could have a much lower 
number with the confidence index, and that would tell you more 
about that school and whether that is a rational determination 
or not as opposed to 200; you know, if Texas and California 
look alike in a lot of ways, and we have completely different 
numbers.
    Mr. Simon. I think that is right, and that is one, as I 
mentioned in my testimony, the Secretary intends to call later 
this fall when we get the latest numbers in from this round of 
testing. This will be the first year every State will have 
tested all their grades. We want to get the States in and get 
not only N size but a number of other factors. We want to look 
at confidence intervals.
    Mr. Miller. Right now, under current law, you can talk to 
the States all you want, but under current law, what triggers 
the events that lead--you know, we need to call schools in need 
of improvement because, in theory, the Federal Government is 
going to ride to the rescue with some offerings that are 
available to the students and to the families, maybe this year 
for the first time with some revenues to those schools that are 
in need of improvement so that they can work their way out of 
it. But if they are never triggered, if they never show up on 
the scale, where do these students go to get that kind of help?
    Mr. Simon. Again, we think we have had a pretty good 
balance in what we have approved and what we haven't approved, 
knowing it has got to be looked at again.
    Mr. Miller. These are stunning numbers of students that are 
excluded. And even if you want to say, well, they are counted 
in another way, they are counted in another category, they are 
economically disadvantaged or some other fashion, that still 
leaves schools where the fact is the N number has excluded 
students because they are not counted even if you try to put 
them in multiple boxes. I mean, that is----
    Mr. Simon. Yes, sir. We are totally in agreement. That is 
why we, again, think it is important to take another look at N 
size, and we have, and we are this year.
    Mr. Miller. If I just might, Mr. Chairman, when you say you 
are taking another look at it, you are taking another look at 
it in what fashion?
    Mr. Simon. In the sense that we intend to get the States 
together and reexamine, have each one of them reexamine each 
one of their N sizes as well as other measures they are using 
and justify to us now that we are testing more. We are 3 years 
into the law, justify to us in a way that we didn't require in 
the early days as to why you still need an N size of whatever.
    Mr. Miller. There is a lot of rationales why schools or 
States say they need these N sizes. I guess, Mr. Peiffer, we 
will hold you up as a model here until someone--but I assume 
you have large schools, suburban--you have metropolitan-area 
schools that are of substantial size, if I am familiar with 
Maryland. You have some rural schools.
    Mr. Peiffer. Yes, sir.
    Mr. Miller. You have some rural schools that are relatively 
small. You have schools that are heavily impacted by 
minorities. You have schools that are a majority minority.
    Mr. Peiffer. Yes.
    Mr. Miller. You have English learner schools, ad I have 
been out in some of the areas of Maryland; that is growing.
    Mr. Peiffer. That is correct.
    Mr. Miller. And yet the N sizes remain to be five with 
this, with some kind of index.
    Mr. Peiffer. Yes, sir. To all schools.
    Mr. Miller. I think, you know, that starts to look like the 
threshold that you may have to start working back from. I am 
assuming the validity there, because Mr. Brittain makes a 
fundamental point, you know, about this because now we are 
into--we are into the question of equal protection, and whether 
or not we have used an arbitrary standard to do this. You know, 
I think that No Child Left Behind--I am very proud of it 
because the fact is, you know, for the first time ever, we have 
legislatively made a commitment to educate every child to 
perform proficiently. But recognizing the gap that existed and 
the deficiencies that existed, we set in a series of triggers 
that would yield additional help to those students and to their 
families, and that is being shortstopped by what in many 
instances appears to be an arbitrary setting of this inside 
that excludes these students from being counted. My time is up, 
and I see you reaching for the gavel. Thank you.
    Mr. Osborne. Thank you, Mr. Miller.
    I would yield myself time to ask questions. I think I was 
next in order here. The only comment I would have is that I 
used to teach statistics. And a five, it is pretty hard to get 
any kind of significance; if one person fails, that is 20 
percent, and in 20, one person fails, that is 5 percent. So I 
guess I would be interested, Dr. Peiffer, in just asking you 
how you find any statistical significance in using an N as 
small as five.
    Mr. Peiffer. The statistic actually changes as you get 
closer to the 100 percent target in 2014. And it is by the 
nature--it is a statistics course beyond the one I took when I 
was in college. If you look at each year between now and 2014, 
the assistance that a school might get with an N-5 will become 
smaller and smaller until it will actually become zero because 
the fact is, the goal in 2014 is to have 100 percent of the 
kids proficient, period. There really wouldn't be any margin 
around that.
    Mr. Osborne. OK. I am not sure I totally understand that, 
but I accept it as being well reasoned, and somebody smarter 
than I must have worked on it.
    Mr. Brittain, you made a very interesting comment. You said 
that No Child Left Behind leaves two choices, either you have 
to improve education or you have to lower the bar.
    And I just wondered what your assessment was? Do you feel 
that a large number of States have indeed lowered the bar? And 
do you feel that, from your perspective, that most States have 
made an honest good-faith attempt, or just what perception do 
you have of how things are being implemented.
    Mr. Brittain. In my written testimony, Congressman Osborne, 
I do point to a law review article by one of my colleagues, Jim 
Ryan, who has studied the States and their determination of 
their testing standard. Some, such as I believe Georgia, have 
just increased their standard. Others have lowered their 
standards. Just like the N factor is the discretion given to 
States to comply, .we would hope that a more full investigation 
of what are our State standards would be made, and like the N 
factor, there would be some effort to try to establish insofar 
as the standards meet a minimum standard. And there are good 
States, like on the N factor, and not so good States. And there 
are good States on setting good rigorous standards, and there 
are some not so good States. And that is one of the unintended 
consequences of No Child Left Behind.
    Mr. Osborne. So what you are saying, it is rather mixed as 
far as your perception?
    Mr. Brittain. Yes, and a continuation of the statement made 
by Congressman Miller with some of the inequality and 
unevenness and some of the lack of standards and arbitrariness 
in setting these minimum standards.
    Mr. Osborne. Certainly no one wants to look bad. It is sort 
of a fundamental factor of human nature.
    And so we understand that.
    Seems like the one opportunity to have some universal 
assessment is the NAEP test, and yet I realize that many States 
resist a national standard. They say, well, we are unique; we 
are somewhat different.
    And I guess a question to any or all of you is, do you feel 
that the nuclear NAEP is being used correctly or that it should 
be relied on more or that the principle of allowing each State 
to have quite a bit of discretion is working? Because, as you 
know, some type of a national standard would certainly 
circumvent some of the problems that you have already pointed 
out. So you have about a minute left, so if you want to make a 
quick comment, I would appreciate it.
    Mr. Simon. From my perspective, from our perspective, we 
think the NAEP is very important. It does set a benchmark 
against which all States can be measured.
    But I think also Congress is wise in allowing individual 
States to set their own standards. That is what education is 
about. It is a State function. We can't do that from 
Washington, D.C.
    NAEP is good in that it is a watchdog if you will on State 
standards and State performance. When you compare proficiency 
levels, grade levels in the individual States, they vary quite 
a bit. NAEP is the one standard that you can get back to. They 
can work in harmony with one another. You have to understand; 
they are different. NAEP is different from a State test. But I 
think it is a good benchmark upon which we can look at the 
whole country.
    Mr. Osborne. So would you suggest that if a State is by 
their own assessment performing very well but by NAEP standards 
not performing well, that some adjustment should be made?
    Mr. Simon. I think it is a good basis for conversation 
within the State. I think if I were a citizen in the State with 
a child in the schools, I would be asking, why is that so? And 
do you in fact expect less from my child?
    Mr. Osborne. From the standpoint of your Department, do you 
feel this would be a wise tool to begin to use?
    Mr. Simon. Again, I think NAEP was designed for a specific 
purpose. When we talk about proficiency on NAEP, we are not 
talking about grade level in a sense. It was a very--it is a 
high expectation exam. So I think we would have to really go 
back and look at why we have NAEP and what the real mission of 
No Child Left Behind is, but I think there is certainly a role 
for both State exams and NAEP in this process.
    Mr. Osborne. Thank you, my time is up. I would like to hear 
from all of you on that, but I don't have time. So at this 
time, I would yield to Mr. Kildee.
    Mr. Kildee. I thank you, Mr. Chairman. The concept of the N 
size was created to ensure the reliability of the data and also 
to protect the privacy of the students.
    Unfortunately, this has created a loophole that can prevent 
us from really knowing why and how many low-income students or 
minority students and students with disabilities are struggling 
in school.
    Without the disaggregation of data, we are really blind in 
addressing the problems of subgroups, and this was not exactly 
a brand new idea when we passed this bill because the previous 
reauthorization--and I was chairman then--we had disaggregation 
of data at that time in 1993. So it wasn't something that was 
just thrown upon you that you couldn't get used to. It has been 
a part of the Federal law, tightened up of course, and in the 
last No Child Left Behind was dating back to 1993. So there has 
been some experience with this.
    Let me ask you this, how can we maintain a meaningful 
disaggregation of data and still protect the privacy of 
students, which was one of the reasons we put this in, and also 
still identify, as Mr. Brittain has pointed out, the schools 
that need some special help? How can we achieve both, all three 
of those. I will address that to----
    Mr. Simon. I think the Secretary's intention of gathering 
together the States to re-examine their plans, and when we say 
gather the States, we mean also to bring in psychometricians, 
statisticians that understand what reliability and validity are 
about, to understand how that is measured, to examine every 
State with those experts, to re-examine what, for example, 
their N size--that is one of the things we are talking about, 
but also in conjunction with their use of competence interval, 
their use of standard measures, their use of other statistical 
measures, to get some professionals that can relook at this 
now. In view of the fact we have more kids being tested now, 
what was appropriate in 2003 for an N size school in Michigan 
may not be appropriate any more because Michigan is not testing 
the same number of children. It is testing more children than 
it was in 2003, what was reliable, what was necessary for 
validity and reliability then may or may not be appropriate 
now. And so I think that is why it is important to re-examine 
it, re-examine it with some professional assistance, and then 
require some type of justification for a State to say it wants 
an N size of X.
    Mr. Kildee. It seems that, initially, when the States were 
setting their N size, there was great flexibility and, even 
from your Department, a certain laissez-faire as they set their 
N size, but now there is a greater rigidity when it comes to 
changing their N size. Am I characterizing that correctly?
    Mr. Simon. Yes, sir. And I as I mentioned in my testimony, 
not because of the personnel that are there but because of 
experience. We are a lot smarter now than we were in 2003.
    Mr. Kildee. I notice Michigan recently asked that their N 
size be increased from 30 or 1 to 30 plus 10, and you turned 
that down. Have you changed that many States within the past 
year, their N size?
    Mr. Simon. Within the past year, we have had 10 requests 
for changes. We have only granted one, and that was to get the 
N sizes consistent among various subgroups.
    Mr. Kildee. All right. All right. Is there any way that we 
could have a better objective, Federal norm or at least some 
guidelines as to the N size because, as I said initially, they 
are all over the lot, wide disparities from one State to 
another? Is there any way we can establish some guidelines if 
not a norm for the N size for the various States?
    Mr. Simon. I think that is what we hope will come out of 
our discussions later on this year with the chiefs, with the 
States, with their accountability directors and with 
professionals in measurement, is to give us some data that we 
can give you to help inform you when you make those decisions.
    Mr. Kildee. Keep in mind the three reasons. One is 
disaggregation of data. One is to protect the privacy of the 
students. And the other is to make sure we give special help to 
those schools who really are not performing as they should. 
Keep those three objectives in mind.
    Thank you very much.
    Mr. Osborne. Thank you, Mr. Kildee.
    Mr. Marchant.
    Mr. Marchant. Thank you, Mr. Chairman.
    I would like to focus with Dr. Kuhlman on specifically the 
students with disabilities. My child is a student that went 
through 12 years of public school considered to be disabled. 
And can you discuss with me, over on your chart, it looks 
like--let me just ask you a few questions. In 2003 and 2004, 
under the reading and language arts, you had 17 students 
classified as students with disabilities.
    And then in 2005, 23. And then in 2006, 26. Was that an 
actual jump in the student population of students with 
disabilities, or was that reclassification of other students?
    Dr. Kuhlman. No, it was an increase over those 3 years.
    Mr. Marchant. And do you find, does your State give any 
kind of a waiver for students with disabilities in their 
testing?
    Dr. Kuhlman. There is no waiver on testing the students 
that we have. We have students who are mildly disabled with 
speech and language disorders, learning disabilities, behavior 
disorders and health impairments in that group. And all of our 
special ed students are tested. There is no waiver.
    Mr. Marchant. So they are not taken out of the equation in 
any way?
    Dr. Kuhlman. No. Now, we are not legally mandated under No 
Child Left Behind to make AYP with the group because it is such 
a small subgroup, just the topic we are talking about today. 
But at our school, we took that seriously. When we saw our 
other two subgroups--and you can see on the same chart--
performing in 2003 and 204 in the 90 percent proficiency level, 
and special ed students down in the 40's and 50's, that is 
where we said we were grateful for the reporting because while 
we analyze data on an individual student-by-student basis, we 
didn't group students, so the fact that data were reported for 
those students was helpful to us in knowing that we really 
needed to make some changes and focus on improvements for our 
students with disabilities.
    I was a special ed teacher, so it was important to me that 
at our school we not have significant gaps with students with 
disabilities.
    Mr. Marchant. In Texas, we have had a lot of situations 
where many of our schools that for years were rated exemplary 
in this last testing cycle lost their rating primarily because 
they included, they took more of an inclusive testing policy 
and then, when they were stripped of their exemplary status, 
went back and appealed to the State. And their appeal basically 
was based largely on the fact that they had included too many 
disabled students. And the State didn't allow them to pull 
those students back out and restore their exemplary status. 
Would you say that is generally the policy with most States?
    This is for the panel.
    Are most States moving toward Dr. Kuhlman's model, or are 
most States living with what they are able to do as far as that 
goes?
    Mr. Peiffer.
    Mr. Peiffer. I can only speak for Maryland. We work very 
hard to make sure that all of our students with disabilities 
are included in the accountability and assessment program. We 
have an assessment for the lowest 1 percent of students who are 
very seriously disabled and alternative assessment. We are 
waiting for guidance from the U.S. Department of Education on 
another assessment that will be called a modified assessment 
that will be more in tune to the needs of the next 2 percent of 
students above that.
    And I think the key with all of the limited English 
students and the special education students both, if they are 
they are to be included in adequate yearly progress, we need to 
make sure that the tests we have in place for those students 
are a fair and accurate measure of what they know and are able 
to do. But we are very much committed to making sure that those 
students are included.
    Mr. Marchant. And, Mr. Simon, what is the goal of the 
Department of Education along these lines?
    Mr. Simon. This particular issue is probably if not the 
single most issue that is discussed and considered most by the 
States, it is in the top two. And we have done a lot. I think 
States are really moving to get students with disabilities 
included appropriately in assessment and in teaching. Many 
times, they don't know what to do. And so we intend, in 
addition to releasing rules and regulations, we intend to 
release technical assistance to help States understand how we 
can identify these students properly, how to test them 
properly, how to teach them properly.
    Mr. Marchant. Thank you, Mr. Chairman.
    Mr. Osborne. Thank you, Mr. Marchant.
    Mr. Andrews.
    Mr. Andrews. Thank you, Mr. Chairman.
    I would like to thank the panel and thank the chairman for 
the hearing. I think it is imperative that the result of the No 
Child Left Behind be that we find more creative ways to educate 
students, not more creative ways to create records to show that 
we are educating students when we are not.
    And I think that this size of the N issue sounds very 
arcane, but it isn't. It is very fundamental and very serious 
about whether we are going to take these obligations seriously. 
And I am glad we are having this hearing.
    There is another part of this equation, and it is whether 
or not the resources that we are sending from the Federal 
taxpayers are being properly applied to meeting the needs of 
the children in the schools, and I wanted to ask Secretary 
Simons some questions about some issues I called to the 
attention of Secretary Spellings in April.
    First, I want to say, we have had some excellent responses 
from Secretary Spellings' legislative staff. Ms. West in 
particular has been quite attentive in getting back to us. But 
we still haven't gotten to the bottom of the question I asked 
Mr. Secretary, and here is what it is: Based on news reports, 
which of course means that it may or may not be true, but based 
on news reports, there were--the following three issues were 
called to my attention. In the Columbus, Ohio, public schools, 
we had No Child Left Behind money spent on cell phones, $23,000 
worth; a $1.2 million increase in overtime spending; and we had 
$47,000 spent on furniture the district could not locate when 
it was audited.
    In Cottonwood, Arizona, $1.1 million was spent over a 13-
month period on after-school programs. I am told that programs 
of this nature typically are very low budget, cost about $300 
per student. This one averaged out to $4,900 per student.
    And in New Jersey, in my own State, in the city of 
Elizabeth, which has six schools on the needs improvement list, 
it is reported that the school board spent $600,000 in a buyout 
for a school administrator, some of which may have come from No 
Child Left Behind money, and then over $100,000 on television 
advertising in a dispute with the city government over where to 
build a new school under the State's school construction 
program, a political dispute about where the school ought to be 
built.
    I don't know if these things are true. But I would like to 
know if they are true. And more importantly, I would like to 
know what strategy the Department has to focus on this.
    And I will tell you why I think this is particularly 
important. The principle change between No Child Left Behind 
and the prevailing law was that we were going to tether this 
Federal money to very specific performance standards and 
objectives. When Title I started, as you know, we said, here, 
here is a sum of money, do good things with it. And then, in 
2000, the Goals 2000 legislation--I guess it was prior to 
that--we said, do good things with the money, here is what we 
would like you to accomplish. And when that was not 
accomplished, in No Child Left Behind we said, here is a large 
sum of money, here is what you need to accomplish, here is how 
we are going to measure your achievement, and here are the 
series of remedial actions you must take in order to make these 
changes happen, which is the whole genesis of AYP.
    You can't really measure that progress unless you are sure 
the money is going to the things that it ought to go to, and I 
got to tell you, not only are children in these districts being 
cheated when they are not being counted, but they are also 
being cheated when money the Federal taxpayers are sending for 
after-school programs and reading tutors and preschool and 
summer school are being spent on cell phones and political 
advertising campaigns and furniture that can't be found.
    So what are we doing about that?
    Mr. Simon. Yes, sir. Thank you.
    And we did receive your letter, and quite frankly, we have 
had a number of individuals working on that. Those audits that 
you referenced were not a result of our audits. So we are 
trying to track down who did the audits, the source of their 
information and then where that information goes.
    We audit from the Department of Education through Title I. 
We audit States and then, within States, selected school 
districts. And we have never pretended to audit every school 
district in the United States. So, short of that, we work with 
the States.
    Now that having been said, every individual district, I am 
sure this is true in every State, it certainly is in my State, 
has to do an annual audit, which is, I am assuming that is 
where this information was found. Part of an annual audit at 
the district level includes auditing Federal funds. That 
information generally is sent to the State department for the 
State department to look at. It is also sent to legislative 
committees to investigate. I know, many times again in my 
State, there were numerous occasions where superintendents were 
called before legislative committees to talk about audits of 
Federal funds as well as State funds.
    If we determine through whatever source that there is a 
miss, it has been an abuse of Federal funds, and certainly we 
get involved in that. We will work through the State department 
in conjunction with them to see what is necessary, if the facts 
are there, if they are true and then how we might go about 
recovering those funds. We just haven't gotten to the bottom, 
totally, of everything you have asked us to do, but we are 
certainly pursuing that.
    Mr. Andrews. If I may, can you tell me when we will have an 
answer?
    Mr. Simon. Sir, I can't tell you for sure. But I will get 
an answer to you this afternoon. I have not been working 
directly on that. But my staff has.
    Mr. Andrews. I want to make it very clear, your staff has 
been very responsive to this. I know my time is up. I want to 
say one more thing. This is more than just about these three 
districts. See, my experience in local government has been that 
Federal money is treated as a little freer than money raised 
from the taxpayers that are sitting right in front of you. And 
there is a tendency for districts to, certainly not all 
districts, but districts that have a bent toward this kind of 
carelessness to begin with to be even more careless with 
Federal money.
    And frankly, the ability of State education departments 
varies. There are some that are very competent and very 
thorough in their audits, and there are others less thorough. 
But every single one of those dollars that is being spent in 
Arizona or Ohio or New Jersey is being raised by my taxpayers 
in New Jersey, Mr. Kildee's taxpayers in Michigan, Mr. 
Osborne's taxpayers in Nebraska. And we think we have a very 
special obligation, not only to the taxpayers but to the 
children who are being cheated if these allegations are true. I 
thank you.
    Mr. Osborne. I thank the gentleman.
    Ms. Woolsey.
    Ms. Woolsey. Thank you, Mr. Chairman.
    It is good to hear that every single member up here agrees 
that it is important for schools and parents and the public to 
have access to disaggregated data on student achievement.
    What I would like to ask each of you, and starting at the 
with Mr. Brittain, is, tell me one of or tell me the most 
important way that this information can be used to help 
students? Particularly the students that aren't measuring up, 
meeting their AYP, what would be the most important way you 
have used this information?
    Mr. Brittain. I would use the information that you provide 
them with special services to help them meet their level of 
achievement, their level of progress and ultimately to find the 
highest level of their proficiency. I believe that is the most 
important way that, particularly if you are talking about the 
excluded students, they are not being helped.
    And from a civil rights perspective, I think that the 
parents and the students deserve to be informed of all of their 
rights under No Child Left Behind. And certainly, they should 
be informed that, if their school has finally been designated 
by the long process of not performing, they should be entitled 
to their transfer right under this.
    One of the proposals we make, Congresslady Woolsey, is 
that, for the excluded students who are not counted in the N 
factor, they should receive their remedial measures no less. 
That would go to Congressman Miller's point of view that they 
are being denied their rights of No Child Left Behind as well 
as being excluded from the data. So we would say as one fix 
that if you are going to exclude them from the data, you know 
who they are, you have their testing information, you still go 
and provide them with their remedial right.
    Dr. Kuhlman. At Centennial Place, we have made AYP for 6 
consecutive years, so we haven't been subject to any of the 
sanctions under No Child Left Behind. But we have found the 
data and the disaggregation of data that is presented to us to 
be very helpful in informing instruction, in planning 
additional resources for students that need additional help, 
just as I explained with the students who have disabilities. We 
were really able to focus on intensifying collaboration among 
teachers and parents, and really narrowing the scope of our 
curriculum and standards and going deeper with those kids in 
the program so that they were able to perform more 
satisfactorily. So I think that the actual presentation of data 
really helps schools zero in, whether they are subject to 
sanctions or not, in terms of making substantive improvements 
in the instructional process.
    Ms. Woolsey. Dr. Peiffer.
    Mr. Peiffer. Disaggregated data is used pervasively 
throughout Maryland from the school system on down. Of course, 
at the State level, we look at that to help us determine 
whether we are putting our efforts in the right systems and 
groups and so on.
    But at the school system level, quite frequently, they are 
looking at the principal assignments to make sure that they are 
going into--the right principal is going into the right 
schools. I met with the assistant superintendents for 
instruction from our 24 school systems back in March. And they 
talked at great length about how they are working with 
principals so they are smarter about looking at the data so 
they can make good instruction for students. So they are trying 
to do it, institutionalize that approach.
    So if you think about, for most of our schools, they know 
that AYP is important. They know the performance of those 
individual students is important. So it really overrides almost 
every other factor in terms of making decisions at the school 
and system level.
    Ms. Woolsey. Dr. Simon, from your perspective?
    Mr. Simon. I have to agree, when the individual test result 
and individual teaching data about those kids gets into the 
hands of the individual teacher to help that child, regardless 
of whether that child is in subgroup 1, 2 or 3, it all goes 
back to what that teacher knows about that child and what he or 
she is able to do with that child in the classroom and to be 
able to focus what that child needs.
    Ms. Woolsey. I would like to ask you, the President has 
repeatedly underfunded No Child Left Behind in his budget. Does 
the administration and does the Department think that we don't 
need any additional funding for these services?
    Mr. Simon. If you look back on the history of No Child Left 
Behind, there are record amounts of Federal funds that have 
gone into assisting schools and teachers. Teachers become 
better teachers. Schools become better schools. We believe that 
money has been well spent. It is showing up in increased 
achievement.
    Ms. Woolsey. So you think that is enough. I mean, we don't 
need any more than what is on the table now?
    Mr. Simon. I think the Federal Government has been very 
generous in its funding of education and being good partners 
with States.
    Ms. Woolsey. Well, I disagree with you on that one.
    Thank you.
    Mr. Osborne. Thank you, Ms. Woolsey.
    Ms. McCollum.
    Ms. McCollum of Minnesota. Thank you, Mr. Chairman.
    I was just going to comment, a person who assisted me on my 
education policy is a Minnesota State auditor. Just in 
complying in 1 year, we spent $19 million getting the tests all 
straightened out for No Child Left Behind, so I was wondering 
if the State of Minnesota had received $19 million from the 
Federal Government to offset that, and I think the answer is, 
no.
    So any achievement we have done in Minnesota, I would say 
that we have done it with Minnesota's taxpayers' dollars.
    I am glad we are having this discussion because I am very 
concerned about, what are we measuring?
    Every State has its own standard. You say you are going to 
look at the national standard, the NAEP, and juggle some 
formula and bring the schools in or the States in and say, 
well, maybe you should be changing your standards here or there 
so we have something that we can measure.
    All the cell sizes are different.
    And we need to be doing much better than this. We are all 
adults here in the room. We all know when we show up to work, 
and we are measured on performance, or when we purchase 
something. We don't let every State set standard performance 
for cars. We know, when we purchase a car, how reliable it is 
going to be, what the gas mileage is going to be like. But yet 
when it comes to our schools, we seem to think that we can do 
whatever.
    Now you can make your point for the Department that it is a 
State's right to provide an education. And I agree with that. 
It is in Minnesota's State constitution. But what is happening 
right now is, because Minnesota has its standards, and you 
point out that some States have higher standards than others in 
some of the testimony, then nationally, when we go to rank 
these schools and they are up next to each other, there isn't a 
big asterisk next to it saying, oh and by the way, these States 
did lower the bar, and they still have students that aren't 
making adequate yearly progress. And those students who aren't 
making adequate yearly progress might be the students that are 
in, especially in minority categories, scoring at the top of a 
bar in another State. So what have we really done for those 
children?
    If this is to be a Federal program, then I think we need to 
move toward a standard Federal system in measuring our outcomes 
here.
    I say that because we have--we are a very mobile society. 
We have Hispanic immigrant students that we are going to be 
trying to measure. That is pointed out in testimony. And so I 
would like a little more of a discussion about how do we get to 
one measuring bar. And then, just to point out, if we have 
special ed students that aren't making adequate yearly 
progress, shame on the Federal Government for not funding 
special ed for how many years? We have failed to do that. What 
makes us think we are going to be more, have more success with 
No Child Left Behind without the appropriate funding for that?
    And then I am just curious, when the Department looks at 
African-American students right now, black students, how are 
refugees being counted? And what are we going to do about 
school districts that have a lot of, a large refugee 
population, that are not only dealing with language, but they 
are dealing with culture shock and, in Minnesota, even with 
weather shock in the winter.
    So how, especially in my State, when Asian and black 
students are counted, how are we counting? And what is the 
Department doing for refugee students and making sure that, as 
our country takes in these refugees, that our school districts 
gets the funding that they need to make these refugees 
successful?
    Mr. Simon. In terms of the last issue you raised, limited 
English proficient students, that is a subcategory that is 
required as a subgroup both for reporting and accountability. 
We work with the schools. We have a specific office, Office of 
English Language Acquisition, that works with States. There are 
regulations in place that talk to a State about how these 
students can be treated for adequate yearly progress, schools 
are given, under proposed regs that being written now, are 
basically being given a year for those students to come in 
where they are not held accountable for assessments. But there 
are requirements for those children to be tested for their 
limited English language proficiency. There are opportunities 
with assessment and teaching for those students to hopefully 
exit that category as soon as they can properly participate in 
testing.
    We give them credit for moving students out of those 
categories. Our objective is to get those students into a 
regular classroom as soon as possible. We want to give States 
credit for their doing that.
    So and we are continuing to work with States to improve 
assessment of these children. That has been one of the big 
concerns that States have had is how they test these children 
to really understand the level of their language proficiency 
and their ability to participate in English and math exams. And 
so it is a continuous thing we are working on. I think, again, 
we are smarter today than we were 3 years ago. I think those 
children are being better served than they were 3 years ago.
    Mr. Marchant [presiding]. Mrs. McCarthy.
    Mrs. McCarthy. Thank you, sir. I thank everybody for their 
testimony. I think it has been really interesting for the 
majority of us.
    Dr. Kuhlman, I just want to ask a quick question, with the 
resources that you receive, not only from the Federal 
Government and from your private corporations that are in a 
partnership with you, then on the State level, the amount of 
money that you are getting, would you say that you are actually 
receiving more money for your school than maybe the average 
minority school would be getting?
    Dr. Kuhlman. No, we are funded under the same formula that 
all Atlanta public schools are funded. We actually have a lower 
free and reduced lunch rate than the average Atlanta public 
school, so we get a little bit, proportionately, less in Title 
I.
    And our resources in the community are in kind resources, 
not dollars. But I will say that the value is enormous. And 
that would be my statement, that all kids need these resources 
that our kids have been so able to benefit from, and 
encouragement to community members and organizations to get 
involved in their public school and to help and to public 
schools to reach out and bring the community into the schools 
so that they can help.
    Mrs. McCarthy. Well, I thank you, and it sounds like your 
school has the winning formula. With that, I would like to 
yield the balance of my time to Mr. Miller.
    Mr. Miller. Thank you very much, and if I might just thank 
the gentleman for yielding. I would like to pick up on the 
conversation with Mr. Kildee.
    We have tried to be very supportive of the Secretary as the 
Secretary has tried to walk through the competing demands from 
the law of the States and everybody involved in it. But, and I 
recognize that the Secretary inherited some of these N number 
decisions that were made, and that starts to be the benchmark 
from which you then have to work from.
    But I think if we are right in that this determination, as 
presented by Mr. Brittain, is about whether or not students 
will or will not get the services that are required and 
provided for under Federal law, that the only way out of this 
is to really put together an independent objective technical 
committee to look at this. And I would invite the civil rights 
community into that because if this is accurate--and I think it 
is accurate--it does go to whether or not these children will 
have an opportunity to be proficient or not.
    But I think that, as you were suggesting that you are 
trying to do something like that, I don't think this can be a 
case-by-case basis any longer because, if nothing else, for the 
moment, I think Maryland just knocks that out of the box. And 
again, I am not suggesting that that is the answer. But I think 
that--I would hope that the Secretary would think long and hard 
about putting together that kind of technical committee to 
decide what makes sense and what doesn't make sense and what 
can be justified here when you recognize that it will end up 
essentially being about whether significant numbers of students 
are denied access to those resources.
    So I just want to say that.
    I was also looking at an old friend of mine, Hayes Mizell, 
who has been involved in these issues for some time back in 
2003, sent me a speech that he gave in Maryland to the Howard 
County Schools' Faulkner Ridge Staff Development Center in 
Columbia. And in that he was talking, he was trying to get 
people to think anew with No Child Left Behind. But he went 
back to a very old point, and he quoted a talk about Brown v. 
Board of Education; he quoted, Louisiana's abysmal performance 
on African-American students prompted a member of the State 
board of education of Louisiana to say, we will never reach our 
goals as a State if we don't improve the performance of our 
poor and black students. And if we don't measure it, then you 
don't count it. And if you don't count it, then you don't pay 
attention. And if you don't pay attention, then you don't fix 
it.
    And I want to say that I probably heard that from the 
President of the United States a dozen times while we were 
putting together No Child Left Behind. And the Secretary has 
said it I think many, many more times than that. When people 
want to challenge standards and accountability and all that 
flows from that. And my worry is--I am not suggesting 
intentionally--but we have created a group of students here who 
may very well not be counted and therefore may not be paid 
attention to and therefore may not receive the services.
    So, I would hope that your--I don't want to hold you to 
saying this is what you are going to do, but I would hope that 
this would blossom into a really independent technical look at 
how you develop what may be a rational decision that in some 
cases some of these school scores may not need to count, and if 
that is even the case, how do you still then make sure that 
services get to those children that the law says that they must 
get? And I think it is a two-part question.
    Hopefully there won't be many in the second part of the 
question if we do the N number right. But I think it has to be 
there as a fall back, as Mr. Brittain has suggested, because we 
know, for a child to lose this opportunity in just a school-
year period of time, the problems start to cascade on 
themselves. That is why we have testing at this level and we 
have the development of these scores and we have this 
information, this disaggregated data, so we can get in there 
and deal with these problems in a realtime basis. So I just 
wanted to hopefully expand a little bit on that question by Mr. 
Kildee and your response to it and my suggestion to your 
response to it. Thank you.
    Thank you for yielding.
    Mr. Marchant. Mrs. Davis.
    Mrs. Davis of California. Thank you all for being here.
    I wanted to raise one issue that we haven't talked about so 
much in the potential loopholes that are out there. Could you 
please address the issues of when students are counted, as per 
their, how long they have been in the school? And it is my 
understanding that schools don't necessarily have to count for 
AYP until they have been in the school for half a year, some 
schools almost a full year. What is your feeling about that? Is 
that something that we ought to be addressing? And how do we 
sort that out if in fact not only are students not being 
counted if the N size is too small, but our transfer students 
who move around a great deal. Certainly our students who are on 
military bases move around a great deal, and generally 
speaking, children who have fewer advantages move around more 
than children who are more stable. So how do we reconcile all 
that? What do you think we should be doing?
    Mr. Simon. The accountability from No Child Left Behind is 
at the school level. So when we talk about a school needing an 
improvement, we want to say that that school is unable for 
whatever reason to get their children to grade level. So part 
of the protection, if you will, or the fairness to the school 
is that they be judged on children they have had an opportunity 
to teach.
    And so the law provides that a child that is held for 
adequate yearly progressive purposes must have been in that 
school for a full academic year. Now that is defined somewhat 
by the States. Some may start their full academic year October 
one, some may start it September one. But basically, the child 
must be in that school a year.
    Now a district, however, if a child moves from school A to 
school B within a district, the district is held accountable if 
that child has been in the district a year even though the 
school might not be, if he was in one school 3 months and 
another school 6 months, the schools may not be held 
accountable, but the districts would be. Similarly, within a 
State, if a child moves within a State, the State is 
responsible.
    That having been said, I go back to Principal Kuhlman and 
what they are doing in her school. It doesn't matter whether 
the child has been there 2 days or 2 years or 2 months. They 
pay attention to what the child knows and does not know, 
because they look at the data that child brings with them, they 
look at data they accumulate on that child when they are in 
school. That is what is going to teach kids. Accountability is 
important, and it will help direct funds to schools that need 
to be helped. But all that accountability is worthless if the 
classroom teacher doesn't have the tools and the knowledge and 
the desire to really pay attention and help that kid. That is 
where the real work gets done.
    Mrs. Davis of California. I would agree with you, but I am 
just wondering, again, in a dialog fashion, if in fact the 
schools are not truly held accountable for those children who 
move a lot, then doesn't that send a different message to them? 
I know that, years ago, we did disaggregate and we did believe 
that even though a school might have a transiency rate of 150 
percent in terms of turnover, the school was always accountable 
for those kids. And I hear what you are saying, that the 
teachers still have that responsibility. But I am just 
wondering whether we ought to look at that, whether that is 
somehow giving a pass for those youngsters.
    Dr. Kuhlman.
    Dr. Kuhlman. I would say that our superintendent in Atlanta 
public schools agrees with you. We have targets that are 
established for us, school by school. And we include every 
child in those targets. If they arrive the day of the test, 
they are counted in our accountability system. So sometimes it 
is, you know, you take a little hurt on that. And I always 
think that in terms of the real substance of our instruction, 
those children that have been there for a full academic year 
have had the opportunity to benefit our program. But at the end 
of the day, we are accountable for all of the students.
    Mrs. Davis of California. Should that be a separate N size, 
students who have been at the school for half a year opposed to 
a full year, should they be pulled out in some way?
    Dr. Kuhlman. It would be interesting to look at them 
separately, and we do that. And frankly, we don't have a lot of 
difference. Now I think that--I know that would vary from 
school to school, too.
    Mrs. Davis of California. When it comes to military 
students, do you think that in any way those scores should be 
looked at any differently? Is there any interest in doing that 
and enough studies to indicate that, in fact, there may be 
services beyond that impact that the young people are not 
receiving?
    Mr. Simon. I had the privilege of visiting a military 
school in Germany a few weeks ago. And the military schools 
overseas are not under No Child left Behind. The law doesn't 
apply to them. That have been having been said, they have 
adopted voluntarily many of the provisions of No Child Left 
Behind. And I can tell you, we need to model many of our 
schools after what the military schools do for their children. 
And it starts with the key for them is the family being 
involved. As the commander of the base we were at said, when a 
child gets in trouble at school, it is not just the child; the 
father and the mother whoever is in the military is brought 
before the commanding officer, and the child is, their progress 
is talked about. Some good things, and they are certainly 
interested in maintaining a consistency as their children move 
from school to school.
    Mrs. Davis of California. Thank you. I appreciate that. My 
time is up.
    I really was asking more about those children who are 
identified but are not in military schools, are in the regular 
school system, where they are receiving impact aid and there 
may be some additional issues regarding accurate testing. Thank 
you very much, I appreciate it.
    Mr. Marchant. Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Secretary Simon, is there any technical difficulty to 
collecting all of the data without any regard to N size?
    Mr. Simon. I am not sure if I fully understand your 
question, but there is a problem in collecting data. States are 
getting better. When we began No Child Left Behind, the data 
collection systems in many of our States were very inadequate 
to meet the reporting requirements of the law.
    Mr. Scott. I am not talking about reporting. I am talking 
about just collecting the data. Then, you could decide what to 
report, is the second question, but you can collect the data 
regardless of N size, isn't that right?
    Mr. Simon. Oh, sure, now, but again, the format of the 
data, the quality of the data is a lot better today than it was 
3 years ago, and so we are beginning to collect more and more 
information. We know a whole lot more now.
    Mr. Scott. One of the problems is, if you are under the 
level now, the N size in each school, you could have thousands 
of children in a school district but not enough in any school, 
and none of them get counted; isn't that right?
    Mr. Simon. Yes.
    Mr. Scott. Is there any rationale or basis for having a 
different N size for one school district or one State than 
another?
    Mr. Simon. Again, we believe there is. And that is what we 
have tried to exercise since the beginning of No Child Left 
Behind by taking into account a number of factors. But we 
haven't set one N size for everybody.
    Mr. Scott. Do you have those factors listed somewhere?
    Mr. Simon. Yes, sir.
    Mr. Scott. If you could supply that to the committee.
    Now the testing is one thing. The farmers tell us you don't 
fatten the pig by weighing the pig. We want to know what 
happens after the test is given. And what do you do with 
information? Now if you know in a district, in a school 
district, that there are a number of children failing but not 
the critical mass in each school, it is my understanding that 
all of the sanctions are school-based not school-district-
based?
    Mr. Simon. There are sanctions at the school and district 
level.
    Mr. Scott. Now if you have say 200 students, none of whom 
have been counted in any particular school, who you have 
identified as that category as being left behind, are there 
services that could be provided for them?
    Mr. Simon. Yes, sir. Also, those schools, if the individual 
schools, if the child is not counted at the individual school 
because of N size, very likely they are going to be counted at 
a district level. And if the district puts in an improvement, 
that also triggers funding and requirements that the district 
has to provide to the schools that got them there.
    Mr. Scott. So if you have one or two students in each 
school in a particular category, not enough in any school, then 
you can provide services to those students?
    Mr. Simon. Yes, sir, and it would certainly behoove a 
district to do that because if the schools are not taken care 
of, then the district remains in improvement and the sanctions 
get quite intense.
    Mr. Scott. So you have a category where the district fails 
because a category of students fail, but no individual school 
is implicated?
    Mr. Simon. Correct.
    Mr. Scott. Now, the other things that we can do with the 
data, has any--we want fully qualified teachers. The data could 
show that a particular teacher has a historic inability to 
teach certain categories of students.
    If you found that, would that jeopardize the teacher's 
qualifications?
    Mr. Simon. Not from a Federal perspective. We don't get 
that detailed in a school's business, but the whole issue of 
how to qualify teachers is one that is front and center of this 
issue, is also the line for States to get their teachers highly 
qualified.
    Mr. Scott. Would you encourage school districts to know if 
a teacher isn't teaching, say, black students?
    Mr. Simon. Absolutely, and they are required to report 
that.
    Mr. Scott. They are required to report that for a teacher?
    Mr. Simon. For a school, the number of teachers and 
individual teachers, if a individual teacher is not highly 
qualified, the students of that teacher, the school is required 
to report that to the parent.
    Mr. Scott. Can you lose your highly qualified status if you 
are consistently failing to teach certain categories of 
students?
    Mr. Simon. That would be a State's obligation to do it. It 
is not a requirement from the Federal Government. We have a 
requirement that a teacher be highly qualified. Now once they 
are highly qualified, if they fail to perform, that is not 
something that we have ventured into very extensively. We do 
things to encourage that for those teachers not to be in there, 
but there is no penalty from the Federal Government at this 
point on that.
    Mr. Scott. Does the disaggregated data identify the 
students that are dropping out by district?
    Mr. Simon. It is available particularly at the State and 
school district level.
    Mr. Scott. Could you say a word about how you, what 
standard you used to determine whether or not disabled students 
are passing?
    Mr. Simon. Again, that goes back to the State's standard. 
The Federal Government, we have some regulations regarding the 
numbers and types of special education students that can be 
counted as proficient. There are limits that are set by the 
Federal Government, but, ultimately, it is up to an individual 
State's standards to a large degree.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Marchant. Mr. Holt.
    Mr. Holt. Thank you, Mr. Chairman.
    I thank the witnesses. You have been patient, but of 
course, this is really important. It gets to the heart of No 
Child Left Behind. You know, we would like to say that no child 
is left behind, really, no child. Of course, we don't know if, 
in this school, there is five; and another school, there is 20; 
and another school, there is 50; and pretty soon, you have a 
couple of million students you don't know who are being left 
behind.
    And it is not as some people have suggested a matter of 
mathematics or statistics. This is a philosophical point. And 
so a range between 5 and 200 is really not a mathematical 
decision. It is a choice that the school, that the State, the 
schools are making.
    What I would like to ask, Mr. Peiffer, is if, what would 
you say you have had to sacrifice in order to maintain this 
small N of 5? You can either, well, make the assessments, the 
testing easier, so you lower the bar, and you can make it that 
way. Or you are willing to tolerate more schools just not 
making, not being perceived as making adequate progress, being 
classified as adequate progress schools.
    What do you think a school system, or a State, gives up or 
has to give up to maintain as high of standards as you have?
    Mr. Peiffer. With our local school system officials, I 
think there is a lot of fear that if we had a very small N size 
that there would be an inordinate number of schools identified 
as not making adequate yearly progress. We had to work very, 
very hard over the first couple years with this law to try to 
help local school system officials and parents and others in 
what it really meant. So, ultimately, I don't think we have had 
to give up anything. It is a combination of the N of 5; it has 
also been this competence interval statistic that gives this 
sense of fairness. And once we incorporated the two together, I 
think there has been a sense that it has been pretty fair.
    Again, I think I mentioned in my earlier comments that the 
Education Week report that came out in January, looking at the 
2005 AYP list, puts Maryland about in the middle of the 
country, about in or near the national average in terms of the 
number of schools that have made AYP. So I think it really 
hasn't disadvantaged us in any way. But most importantly with 
our constituency and our advocates for students with 
disabilities and limited English proficient students and their 
various racial groups and their parents, I think they also feel 
their students are appearing in results and we are paying 
attention to them. So I think the advantage to that has been 
very important to us.
    Mr. Holt. Do you think, Mr. Peiffer, if there were a 
national cap put on N, 30, 25, 50, you would still maintain 5?
    Mr. Peiffer. I don't see that there is a lot of interest 
right now in changing the N of 5, and it, strangely enough, I 
get approached in the grocery store by parents who seem to 
understand statistics enough that they understand the N of 5, 
so it has gotten to be a part of the culture with parents as 
well, so I think we are very comfortable with where it is.
    Mr. Holt. And, if it were, if there were a national 
standard set, a cap, what difference would it make to a State 
like you that sets, well, this rather high bar or low N?
    Mr. Peiffer. I am not quite sure how the standard would 
apply if it were higher than 5 and that were the standard 
applied elsewhere. I am not sure we would be--in other words, 
if that were the cap, that you needed to be under that certain 
figure, I think there would be a lot of pressure on the part of 
our local school systems to go to a higher number if you will.
    Mr. Holt. OK. Thank you.
    I thank the witnesses.
    I thank you, Mr. Chairman.
    Mr. Marchant. I would like to thank the witnesses for their 
time and testimony, and the witnesses and the members for their 
participation today. It was a great panel. Thank you for 
bearing with us during our votes and the business of the House. 
If there is no further business, the committee stands 
adjourned.
    [Whereupon, at 1:14 p.m., the committee was adjourned.]

                                 
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