[Congressional Record Volume 151, Number 114 (Tuesday, September 13, 2005)]
[Senate]
[Pages S9986-S9988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself and Ms. Snowe):
  S. 1690. A bill to provide for flexibility and improvements in 
elementary and secondary education, and for other purposes; to the 
Committee on Health, Education, Labor, and Pensions.
  Ms. SNOWE. Mr. President, I rise today to talk about a bill that 
gives students, parents and teachers options and flexibility for 
meeting accountability and proficiency standards--the No Child Left 
Behind Flexibility and Improvements Act. My colleague, Senator Collins, 
and I have been working hand-in-hand with Maine's educators to identify 
problems with the No Child Left Behind Act and develop practical 
solutions to these issues. The bill we introduce today is the product 
of our combined efforts.
  In 2001, with the passage of the No Child Left Behind Act, Congress, 
in a bipartisan fashion, set forth a truly ambitious education reform. 
This is a law that was conceived and created with the worthy intention 
to provide equal educational opportunity for every American child. Upon 
implementation of the No Child Left Behind Act some unforseen 
complications of the Act have become apparent. And that is why Senator 
Collins and I called for the creation of No Child Left Behind Task 
Force in 2003 in response to the concerns we heard in meetings with 
Maine's education professionals.
  As described by the Task Force, ``the challenge that the Task Force 
faced was to confront the issues raised by No Child Left Behind, to ask 
how the common State and Federal objectives could be met, and to assess 
how No Child Left Behind and the Maine Learning Results could be 
coordinated better to the benefit of the citizens of Maine.'' The 
members of this Task Force have their fingers on the pulse of their 
students' needs and are therefore uniquely qualified to assess this law 
and make recommendations on how to improve it. In March of this year we 
received the Task Force report, and it is with these recommendations 
that Senator Collins and I could understand its impact on our state and 
our children, so that we can move forward to improve this law in a 
meaningful manner.
  Maine's No Child Left Behind Task Force issued several 
recommendations in five major areas: annual yearly progress, assessment 
and accountability; reading and limited English proficiency students; 
special education; highly qualified teachers; and funding. The No Child 
Left Behind Flexibility and Improvements Act addresses each of these 
areas in several ways. For example, our bill allows local education 
authorities to use local assessments as opposed to a state-wide test to 
measure adequate yearly progress.
  The Act also gives States additional options for deeming a teacher 
highly qualified, give schools the discretion to use reading activities 
grants in a manner that will best address the needs of their students 
and allows schools flexibility with limited English proficiency 
students. This is only a sample of the many modifications our bill 
makes that will results in No Child Left Behind being more effective in 
the State of Maine.
  One of our democracy's most noble goals, still a work in progress, 
has been to create a level playing field on which our children may 
strive to learn and reach their potential. Clearly, education, along 
with the family, plays an integral role in achieving this great 
imperative, which distinguishes our nation and helps make us worthy of 
the world's emulation. The No Child Left Behind Flexibility and 
Improvements Act will help to further this goal.
  Ms. COLLINS. Mr. President, along with the senior Senator from Maine, 
Senator Snowe, I am today introducing the No Child Left Behind 
Flexibility and Improvements Act. Our legislation is designed to 
provide State and local decision makers with greater control options 
and flexibility in the implementation of the No Child Left Behind

[[Page S9987]]

Act of 2002. It would provide commonsense reforms in keeping with the 
worthy goals of this landmark law.
  Since the law's enactment in 2002, I have had the opportunity to meet 
with many educators, administrators, parents, and officials from my 
home State to discuss their concerns regarding the implementation of 
the No Child Left Behind Act reform. In response to their concerns, 
Senator Snowe and I commissioned a Maine NCLB task force in March of 
last year. Our task force included members from every county in our 
State, and had superintendents, teachers, principals, school board 
members, parents, business leaders, former State legislators, special 
education specialists, assessment experts, officials from the Maine 
Department of Education, a former Maine commissioner of education and a 
dean from the University of Maine's College of Education and Human 
Development. In other words, it was a broad-based commission that 
brought a great deal of expertise, experience, and perspective to the 
task force's work. I am very grateful for their dedicated service and 
hard work.
  Senator Snowe and I charged the task force with three core missions: 
First, to examine the problems facing Maine schools, particularly those 
in rural areas of our State in implementing the No Child Left Behind 
Act and to recommend improvements in current regulations and policies; 
second, to make recommendations for statutory changes in the Federal 
law; and, third, to provide greater clarity to Maine's educators, 
parents, and citizens about the law's goals, requirements, and 
relationship to Maine's own State education reform effort which is 
known as Maine Learning Results. What we found is there was some 
confusion about what was required by No Child Left Behind versus what 
was required by Maine Learning Results and how the two interacted.
  The task force met numerous times over the course of the year with 
the goal of gaining a clearer understanding of NCLB and the 
implementation issues facing Maine under federal and State education 
policies. The task force also had the benefit of meeting with officials 
from the U.S. Department of Education, including then-Deputy Secretary 
Hickok who twice traveled to Maine to meet with the task force. The 
task force also met with other state officials who shared their 
expertise in particular areas.
  After the task force completed its work, Senator Snowe and I met with 
task force members at the University of Maine in Orono to receive the 
final report and to discuss the greatest challenges facing Maine with 
the implementation of both federal and State education initiatives.
  I was very impressed with the reports we received from the task 
force, both the depth and the quality of the task force's analysis, as 
well as the practicality of its recommendations. I shared the report 
with several of my Senate colleagues, including the chairman and 
ranking member of the Health, Education, Labor, and Pension Committee, 
as well as with the Secretary of Education Margaret Spellings, and 
Maine's education commissioner.
  I note Secretary Spellings responded with a letter praising the task 
force for its hard work.
  The task force report included 26 recommendations for changes to the 
No Child Left Behind law or the regulations governing its 
implementation. The task force provided recommendations in five core 
areas: Annual yearly progress and assessment, reading and limited 
English proficiency students, special education, highly qualified 
teachers and funding. The task force recommendations highlighted the 
need for greater flexibility for the Maine Department of Education, for 
local schools to address various implementation concerns facing Maine. 
Those 26 recommendations provide the foundation for the legislation I 
am introducing today.
  Over the past several months, Senator Snowe and I have taken these 
recommendations and worked together to translate them into 
comprehensive legislation. Our legislation would make significant 
statutory changes designed to provide greater local control to Maine 
and greater flexibility to all States in their implementation efforts, 
not just Maine.
  For example, the task force recommended that States be allowed to 
measure student performance using different models, such as growth 
models, and that special education experts on the IEP team be allowed 
to determine the best assessment for special education students. Both 
of these recommendations are included in our legislation.
  We believe that our legislation will provide a strong basis for 
continuing discussions about the implementation challenges facing the 
States and will highlight key issues requiring further consideration 
during the reauthorization process, expected to begin later in the 
109th Congress.
  Although our legislation seeks to improve the NCLB implementation 
process through specific statutory reforms, we recognize that, in some 
cases, the goals of our legislation may be accomplished more quickly 
through changes to guidance and regulations from the Department or 
Education, or through amendments to the states' own implementation 
plans. We will continue to seek additional flexibility through these 
avenues to address the immediate implementation concerns facing the 
States, and believe that our legislation provides a useful guide to 
federal and State officials in these efforts.
  Our legislation is a comprehensive effort to address the concerns 
raised by our task force and includes the following provisions:
  First, our legislation would provide new flexibility in the design of 
state accountability systems used to determine ``adequate yearly 
progress'' or AYP. Our legislation would explicitly permit a state to 
include additional models ``discussed further below'' in its State plan 
to demonstrate student progress. Even if a school is unable to meet the 
trajectory targets set by the NCLB time-line, a school would not be 
identified as failing to make AYP provided it demonstrates improved 
student achievement according to these additional models. The principle 
here is one of more accurately assessing whether all students are 
continuing to make progress.
  Our legislation specifically outlines three additional models that 
would be permitted under the statute: No. 1, a cohort growth model, 
which demonstrates student progress by following the same cohort of 
students over time; No. 2, an indexing model, which demonstrates 
student progress through improved performance for students below the 
proficient level--for example, improvement from a below basic to a 
basic level; and No. 3, ``top performing schools'' model, which 
demonstrates improvement through progress in closing the achievement 
gap between the lowest performing students and, for example, student 
performance at the State's top 20 percent of schools.
  The list of models in our legislation is not exclusive, and this 
section reflects our interest in permitting a far greater diversity in 
the types of State accountability systems acceptable under the statute. 
We would also require the Secretary to provide examples of these models 
to give practical assistance to States in the design of these systems. 
While the trajectory goals set in the statute are certainly valuable, 
our legislation seeks to clarify that States should be granted greater 
flexibility in the design of different accountability systems provided 
that they are consistent with the principle of improved student 
performance.
  Second, our legislation would modify the existing ``safe-harbor'' 
provision to allow more schools to take advantage of this provision. 
The ``safe-harbor'' provision in the law is really another example of 
an improvement model already permitted under the statute. In order to 
qualify for the safe-harbor provision under current law, schools must 
reduce the number of students scoring below the proficient level by 10 
percent in a single year.
  As the task force found, this has proven to be a difficult threshold 
to meet, which has resulted in an underutilization of the safe harbor 
provision. Therefore, we have modified the safe harbor to require only 
a 5 percent decrease in the number of non-proficient students, or an 
aggregate decrease of 10 percent over 2 years. Our modification would 
reflect what education assessment experts already know: Significant 
gains in academic achievement tend to occur gradually and over time.

[[Page S9988]]

  Third, our legislation also would provide new flexibility related to 
the statute's 100 percent proficiency requirements for 2013-2014--
another specific recommendation of the task force. Our bill would 
require the Secretary of Education to conduct a review every three 
years to determine the progress of the 50 States towards meeting the 
100 percent goal of the statute by 2013-2014. The Secretary would then 
be permitted, at her discretion, to make modifications to the 
requirements of the 12-year time-line if she determines modifications 
are necessary and in keeping with the broader purposes of the law.
  Fourth, our legislation would also provide greater predictability to 
the school identification process, and limit school identification to 
those schools most in need of improvement. Currently, a school is 
designated as ``in need of improvement'' after it fails to make AYP for 
2 years in a row in the same subject, regardless of what subgroup has 
failed to make AYP. Our legislation would require that in order to be 
found in need of improvement, a school would need to fail to make AYP 
in both the same subject area and with respect to the same subgroup of 
students 2 years in a row.
  As our task force noted, the current rules can be extremely 
frustrating for school administrators who work hard to address a 
reading concern with one group--for example, LEP students--in year one, 
only to subsequently be identified in need of improvement when they 
learn that a different subgroup--for example, special education 
students--failed to make AYP in year two.
  We must provide our schools with notice and an ability to work to 
improve student performance before they are identified as in need of 
improvement. I share the task force's concern that without these 
modifications, we risk quickly reaching a point where so many schools 
are found to be in need of school improvement, that the identification 
becomes meaningless. Worse yet, over-identification of schools creates 
the risk of having improvement resources spread too thin to make a 
difference in helping the schools that truly need assistance.
  Fifth, our legislation would provide additional flexibility for 
teachers of multiple academic subjects at the middle and high school 
level in meeting teacher quality requirements. The task force heard 
from many teachers in Maine about the burden the current requirements 
have placed on teachers in small and rural schools. Our legislation 
provides new options for these teachers to become highly qualified. It 
also would allow teachers of history, geography, civics, and related 
subjects to demonstrate subject area knowledge through the obtainment 
of a general State social-studies certificate.
  Sixth, our legislation addresses concerns about limited English 
proficient students. The task force was concerned about an unintended 
consequence of the current law, whereby once a student becomes 
proficient in English, that student may no longer be included in the 
LEP subgroup. Federal officials have taken steps to address this issue, 
but our legislation would go further to correct this problem. Our bill 
would allow a school to continue to count students who have attained 
English proficiency for purposes of calculating AYP until the student 
graduates from high school.
  Seventh, our legislation would clarify that local assessment systems 
are permissible under NCLB. This was an issue of some confusion in 
Maine, despite the fact that I had written a letter to then-Secretary 
Paige and received strong assurances of the acceptability of 
such systems. Both Nebraska and Iowa have been approved to use local 
assessment systems to meet NCLB assessment requirements. Although Maine 
continues the process of developing its own local assessment system 
pursuant to state requirements, I am confident that nothing in the 
federal statute would preclude Maine from incorporating a local 
assessment system at a time when state officials decide they are ready 
to pursue this option. But our bill makes this crystal-clear.

  Eighth, our legislation would also revise upward the minimum amount 
of funding required for the assessment provisions to go into effect for 
fiscal years 2006 and 2007. This change is based on a recommendation by 
the task force that efforts be made to ensure adequate funding for the 
requirements of the statute.
  These revised levels are based on a GAO report that I required as 
part of the conference report to NCLB. The GAO report estimated that 
although most States, including Maine, had the majority of their 
assessment costs covered, particularly in the early years, additional 
resources would be needed in future years as the assessment 
requirements increased. The report estimated that Maine would have 86 
percent of its assessment costs covered through 2007, and while this is 
significant funding, additional funding will ensure that all States 
have the resources they need, particularly for the adaptation of tests 
for LEP and special education populations.
  Finally, our legislation would also address concerns that some 
special education students are being required to take grade-level 
assessments that are inappropriate for them. Our legislation would 
build on the important new flexibility the Secretary has provided in 
this area. Our legislation would allow the student's IEP team to 
determine the appropriate test for a student, and if a special 
education student achieves a proficient score on this test, the student 
will be deemed proficient for AYP purposes. The IEP requirements of the 
Individuals with Disabilities Education Act--IDEA--will ensure both 
parent involvement in this process, and increasingly higher 
expectations for these students. We agree with the task force that the 
involvement of parents and the IEP team will serve as an important 
safeguard to ensure that those special education students who can be 
assessed according to State-determined grade-level expectations will be 
encouraged to do so.
  Our legislation is a comprehensive effort to provide greater 
flexibility and common-sense modifications to address the key NCLB 
implementation challenges facing Maine, and other States. At the same 
time, our legislation remains true to the important goals of NCLB, such 
as increasing accountability, closing the achievement gap, and 
improving student performance. I look forward to working with my 
colleagues to improve this landmark law during the reauthorization 
process.
                                 ______