[Congressional Record Volume 149, Number 63 (Wednesday, April 30, 2003)]
[Senate]
[Pages S5600-S5602]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Jeffords, Mr. Dayton, and Mr. 
        Leahy):
  S. 956. A bill to amend the Elementary and Secondary Education Act of 
1965 to permit States and local educational agencies to decide the 
frequency of using high quality assessments to measure and increase 
student academic achievement, to permit States and local educational 
agencies to obtain a waiver of certain testing requirements, and for 
other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. FEINGOLD. Mr. President, as millions of public school students 
and teachers around the country prepare to complete their first school 
year under the No Child Left Behind Act, NCLB, I am introducing a bill 
that would help to return a measure of local control that was taken 
from school districts and States by its enactment last year.
  I am pleased to be joined in this effort by Senators Jeffords, 
Dayton, and Leahy.
  I have heard a lot of concern from my constituents about various 
aspects of the President's education bill. Following the enactment of 
the bill last year, the drumbeat of concern has continued to 
reverberate throughout my

[[Page S5601]]

State, and has gotten even louder, as students, teachers, parents, 
administrators, school counselors and social workers, and others are 
learning first-hand about the effect of the NCLB.
  I strongly support maintaining local control over decisions affecting 
our children's day-to-day classroom experiences. I also believe that 
the Federal Government has an important role to play in supporting our 
State educational agencies and local school districts as they carry out 
their most important responsibility--the education of our children.
  I voted against the President's education bill in large part because 
of the new annual testing mandate for students in grades 3-8. While I 
agree that there should be a strong accountability system in place to 
ensure that public school students are making progress, I strongly 
oppose over-testing students in our public schools. I agree that some 
tests are needed to ensure that our children are keeping pace, but 
taking time to test students has to take a back seat to taking the time 
to teach students in the first place.
  I have heard a lot about these new annual tests from the people of 
Wisconsin, and their response has been almost universally negative. My 
constituents are concerned about this additional layer of testing for 
many reasons, including the cost of developing and implementing these 
tests, the loss of teaching time every year to prepare for and take the 
tests, and the extra pressure that the tests will place on students, 
teachers, schools, and school districts.
  I share my constituents' concerns about this new Federal mandate. I 
find it interesting that proponents of the NCLB say that it will return 
more control to the States and local school districts. In my view, 
however, this massive new Federal testing mandate runs counter to the 
idea of local control.
  Many States and local school districts around the country, including 
Wisconsin, already have comprehensive testing programs in place. The 
Federal Government should leave decisions about the frequency of using 
high quality assessments to measure and increase student academic 
achievement up to the States and local school districts that bear the 
responsibility for educating our children. Every State and every school 
district is different. A uniform testing policy may not be the best 
approach.
  I have heard from many education professionals in my State that this 
new testing requirement is a waste of money and a waste of time. These 
people are dedicated professionals who are committed to educating 
Wisconsin's children, and they don't oppose testing. I think we can all 
agree that testing has its place. What they oppose is the magnitude of 
testing that is required by this law.
  Beginning in the 2005-2006 school year, the NCLB will pile more tests 
on our Nation's public school students. And of course, when those tests 
are piled on students, they burden our teachers as well, because 
teachers must spend more and more time preparing students to take these 
exams.
  This kind of teaching, sometimes called ``teaching to the test,'' is 
becoming more and more prevalent in our schools as testing has become 
increasingly common. The dedicated teachers in our classrooms will now 
be constrained by teaching to yet more tests, instead of being able to 
use their own judgment about what subject areas the class needs to 
spend extra time studying. This additional testing time could also 
reduce the opportunity for teachers to create and implement innovative 
learning experiences for their students.
  Teachers in my State are concerned about the amount of time that they 
will have to spend preparing their students to take the tests and 
administering the tests. They are concerned that these additional tests 
will disrupt the flow of education in their classrooms. One teacher 
said the preparation for the tests Wisconsin already requires in grades 
3, 4, 8, and 10 can take up to a month, and the administration of the 
test takes another week. That is five weeks out of the school year. And 
now the Federal Government is requiring teachers to take a huge chunk 
out of instruction time each year in grades 3-8. In my view, and in the 
view of the people of my state, this time can be better spent on 
regular classroom instruction.
  The legislation that I am introducing today, the Student Testing 
Flexibility Act of 2003, would give States and local school districts 
that have demonstrated academic success the flexibility to apply to 
waive the new annual testing requirements in the NCLB. States and 
school districts with waivers would still be required to administer 
high quality tests to students in, at a minimum, reading or language 
arts and mathematics at least once in grades 3-5, 6-9, and 10-12 as 
required under the law.
  This bill would allow States and school districts that meet the same 
specific accountability criteria outlined for school-level excellence 
under the State Academic Achievement Award Program to apply to the 
Secretary of Education for a waiver from the new annual reading or 
language arts and mathematics tests for students in grades 3-8. The 
waiver would be for a period of three years and would be renewable, so 
long as the state or school district meets the criteria.
  To qualify for the waiver, the State or school district must have 
significantly closed the achievement gap among a number of subgroups of 
students as required under Title I, or must have exceeded their 
adequate yearly progress, AYP, goals for two or more consecutive years. 
The bill would require the Secretary to grant waivers to states or 
school districts that meet these criteria and apply for the waiver. 
Individual districts in states that have waivers would not be required 
to apply for a separate waiver.
  The Federal Government should not impose an additional layer of 
testing on states that are succeeding in meeting or exceeding their AYP 
goals or on closing the achievement gap. Instead, we should allow those 
States that have demonstrated academic success to use their share of 
Federal testing money to help those schools that need it the most.
  The bill I am introducing today would do just that by allowing states 
with waivers to retain their share of the Federal funding appropriated 
to develop and implement the new annual tests. These important dollars 
would be used for activities that these States deem appropriate for 
improving student achievement at individual public elementary and 
secondary schools that have failed to make AYP.
  I am pleased that this legislation is supported by the American 
Association of School Administrators, the National PTA, the National 
Association of Elementary School Principals, the National Association 
of Secondary School Principals, the School Social Work Association of 
America, the Wisconsin Department of Public Instruction, the Wisconsin 
Education Association Council, the Wisconsin Association of School 
Boards, the Milwaukee Teachers' Education Association, and the 
Wisconsin School Administrators Alliance, which includes the 
Association of Wisconsin School Administrators, the Wisconsin 
Association of School District Administrators, the Wisconsin 
Association of School Business Officials, and the Wisconsin Council for 
Administrators of Special Services.
  While this bill focuses on the over-testing of students in our public 
schools, I would like to note that my constituents have raised a number 
of other concerns about the NCLB that I hope will be addressed by 
Congress. My constituents are concerned about, among other things, the 
new AYP requirements, the effect that the Act will have on rural school 
districts, and about finding the funding necessary to implement all of 
these provisions of this new law. I share these concerns.
  I regret that, for the second year in a row, the President's budget 
request did not fully fund NCLB requirements and failed to provide any 
funding to crucial programs such as rural education and school 
counseling. If we are to truly leave no child behind, we must provide 
adequate funding for programs such as Title I, special education and 
professional development in order to ensure that all students have the 
means to succeed. To do less sets up some of our most vulnerable 
students for failure.
  I hope that my bill, the Student Testing Flexibility Act, will help 
to focus attention on the perhaps unintended consequences of the 
ongoing implementation of the President's education bill for states, 
school districts, and individual schools, teachers, and students.

[[Page S5602]]

  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 956

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Student Testing Flexibility 
     Act of 2003''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) State and local governments bear the majority of the 
     cost and responsibility of educating public elementary school 
     and secondary school students;
       (2) State and local governments often struggle to find 
     adequate funding to provide basic educational services;
       (3) the Federal Government has not provided its full share 
     of funding for numerous federally mandated elementary and 
     secondary education programs;
       (4) underfunded Federal education mandates increase 
     existing financial pressures on States and local educational 
     agencies;
       (5) the cost to States and local educational agencies to 
     implement the annual student academic assessments required 
     under section 1111(b)(3)(C)(vii) of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(3)(C)(vii)) remains uncertain;
       (6) public elementary school and secondary school students 
     take numerous tests each year, from classroom quizzes and 
     exams to standardized and other tests required by the Federal 
     Government, State educational agencies, or local educational 
     agencies;
       (7) multiple measures of student academic achievement 
     provide a more accurate picture of a student's strengths and 
     weaknesses than does a single score on a high-stakes test; 
     and
       (8) the frequency of the use of high quality assessments as 
     a tool to measure and increase student achievement should be 
     decided by State educational agencies and local educational 
     agencies.

     SEC. 3. WAIVER AUTHORITY.

       Section 1111(b)(3) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6311(b)(3)) is amended by 
     adding at the end the following:
       ``(E) Waiver authority.--
       ``(i) States.--Upon application by a State educational 
     agency, the Secretary shall waive the requirements of 
     subparagraph (C)(vii) for a State if the State educational 
     agency demonstrates that the State--

       ``(I) significantly closed the achievement gap among the 
     groups of students described in paragraph (2)(C)(v); or
       ``(II) exceeded the State's adequate yearly progress, 
     consistent with paragraph (2), for 2 or more consecutive 
     years.

       ``(ii) Local educational agencies.--Upon application of a 
     local educational agency located in a State that does not 
     receive a waiver under clause (i), the Secretary shall waive 
     the application of the requirements of subparagraph (C)(vii) 
     for the local educational agency if the local educational 
     agency demonstrates that the local educational agency--

       ``(I) significantly closed the achievement gap among the 
     groups of students described in paragraph (2)(C)(v); or
       ``(II) exceeded the local educational agency's adequate 
     yearly progress, consistent with paragraph (2), for 2 or more 
     consecutive years.

       ``(iii) Period of waiver.--A waiver under clause (i) or 
     (ii) shall be for a period of 3 years and may be renewed for 
     subsequent 3-year periods.
       ``(iv) Utilization of certain federal funds.--

       ``(I) Permissive uses.--Subject to subclause (II), a State 
     or local educational agency granted a waiver under clause (i) 
     or (ii) shall use funds, that are awarded to the State or 
     local educational agency, respectively, under this Act for 
     the development and implementation of annual assessments 
     under subparagraph (C)(vii), to carry out educational 
     activities that the State educational agency or local 
     educational agency, respectively, determines will improve the 
     academic achievement of students attending public elementary 
     schools and secondary schools in the State or local 
     educational agency, respectively, that fail to make adequate 
     yearly progress (as defined in paragraph (2)(C)).
       ``(II) Nonpermissive use of funds.--A State or local 
     educational agency granted a waiver under clause (i) or (ii) 
     shall not use funds, that are awarded to the State or local 
     educational agency, respectively, under this Act for the 
     development and implementation of annual assessments under 
     subparagraph (C)(vii), to pay a student's cost of tuition, 
     room, board, or fees at a private school.''.

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