[Congressional Record Volume 153, Number 137 (Monday, September 17, 2007)]
[Senate]
[Pages S11589-S11592]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself and Mr. Leahy):
  S. 2053. A bill to amend part A of title I of the Elementary and 
Secondary Education Act of 1965 to improve elementary and secondary 
education; to the Committee on Health, Education, Labor, and Pensions.
  Mr. FEINGOLD. Mr. President, this month millions of American 
schoolchildren are returning to classrooms to begin the new school 
year, making this a time of hope and possibilities. Students in my 
State of Wisconsin and around the country are meeting new teachers, 
getting reacquainted with old friends, joining clubs or athletic teams, 
and embarking on the next step in their educational careers. Teachers 
and administrators around the country are starting a new school year 
with fresh lesson plans and high goals for all the students in their 
schools. And many educators, parents, and school officials are 
continuing to work diligently toward the goal of closing the 
achievement gap that continues to exist throughout many communities 
across the country.
  These students, teachers, and administrators will also face their 
sixth year under the Federal No Child Left Behind Act, NCLB, the 
centerpiece of President Bush's domestic agenda. NCLB, which is 2001-
2002 reauthorization of the Elementary and Secondary Education Act, 
ESEA, requires that students be tested annually in reading and math, 
and starting this school year, in science. The law is up for 
reauthorization this year and it remains unknown how much change 
students, teachers, parents, and administrators can expect as Congress 
works to reauthorize the law.
  I voted against No Child Left Behind in 2001 in large part because of 
the law's new Federal testing mandate. The comments that I heard from 
Wisconsinites during the 2001 debate and that I continue to hear 6 
years later have been almost universally negative. While Wisconsinites 
support holding their schools accountable for results and closing the 
achievement gap, they are concerned about the Federal law's primary 
focus on standardized testing.
  Let me make clear at the outset that this country has a long way to 
go toward ensuring that all students, regardless of their backgrounds, 
have a chance to get a good education. I remain troubled by the 
inequality in funding and resources provided to our Nation's schools 
and by the persistent segregation that schools around the country, 
including those in Wisconsin, continue to face. Moreover, I am deeply 
concerned that NCLB's testing and sanctions approach has forced some 
schools, particularly those in our inner cities and rural areas, to 
become places where students are not taught, but are drilled with 
workbooks and test-taking strategies, while in wealthy suburban 
schools, these tests do not greatly impact school curriculums rich in 
social studies, civics, arts, music, and other important subjects.
  All levels of government--local, State, and Federal--need to act to 
ensure that equal educational opportunities are afforded to every 
student in our country.
  I do not necessarily oppose the use of standardized testing in our 
Nation's schools. I agree that some tests are needed to ensure that our 
children are keeping pace and that schools, districts, and States are 
held accountable for closing the persistent achievement gap that 
continues to exist among different groups of students, including among 
students in Wisconsin. But the Federal one-size-fits-all testing-and-
punishment approach that NCLB takes is not providing an equal education 
for all, eradicating the achievement gap that exists in our country or 
ensuring that each student reaches his or her full potential.
  Rather, the reauthorized ESEA needs to recognize that States and 
local communities have the primary responsibility for providing a good 
public education to our students. The reauthorized ESEA should also 
encourage States and local districts to pursue innovative reform 
efforts including utilizing more robust accountability systems that can 
measure student academic growth from year to year and measure student 
academic growth using multiple forms of assessment, rather than just 
standardized tests.
  Today, I am introducing the Improving Student Testing Act to overhaul 
the Federal testing mandate and provide States and local districts 
flexibility to determine the frequency and use of standardized testing 
in their accountability systems. My legislation is fully offset, while 
providing approximately $200 million in deficit reduction over the next 
5 years.
  Nothing in my legislation would force States to alter their 
accountability systems in recognition of the fact that different States 
are at different stages of their education reform efforts and may wish 
to maintain their current assessment systems. However, my legislation 
says that for Federal accountability purposes, States can choose to 
test once in grades 3 to 5, 6 to 9, and 10 to 12 rather than the 
current Federal requirement for annual testing in grades 3 through 8 
and once in high school.
  For States that choose to test in grade spans instead of annually, my

[[Page S11590]]

legislation encourages them to use more than high-stakes standardized 
tests in their accountability systems. By removing the Federal 
requirement to test annually, Congress can encourage States and local 
districts to lead innovative school reform efforts, including 
developing more robust assessment systems that use a range of academic 
assessments, such as valid and reliable performance-based assessments, 
formative assessments that provide meaningful and timely feedback to 
both students and teachers, and portfolio assessments that allow 
students to accumulate a broad range of student work and assess their 
own learning as they progress through school.
  I have heard from a number of teachers and administrators who are 
concerned about the testing burden NCLB imposed on our Nation's 
educational system. The Federal mandate to test annually has strapped 
State and local districts' financial resources. Congress promised 
States specific funding levels for Title I, part A in NCLB, but 
Congress has failed to live up to those promised resources every year 
since NCLB was enacted. Despite the lack of adequate resources, our 
schools continue to be forced to test and to ratchet up the 
consequences associated with these tests.
  NCLB's testing mandates have also led to a substantial demand for 
increased numbers of standardized tests and I have heard from some 
Wisconsinites concerned that the testing industry cannot keep up with 
this demand. There have been stories coming in from around the country 
documenting the burden faced by the testing industry, including 
incorrectly scored tests, test scores arriving much later than 
expected, and schools given incorrect testing booklets and supplies by 
the testing companies.
  My legislation would help alleviate this testing burden by providing 
States with the option to reduce the number of grades tested for 
Federal accountability purposes. Eighteen States would then be able to 
dedicate more of their critical Title I dollars toward efforts that 
will help close the achievement including improving teacher quality 
through professional development and providing more targeted 
instruction to disadvantaged students in critical subject areas.
  Some may say that with a Federal requirement to test in grade spans 
and not every year, the students in the nontested years will be 
ignored. I have more faith in Wisconsin's teachers and other dedicated 
teachers around the country than to assume that because there is no 
external, federally required test, teachers will not teach their kids 
or ensure that their students make academic progress. Effective schools 
contain teachers who work collaboratively within grade levels and 
across grades to raise the academic achievement of every student. Good 
teachers know that they are responsible for ensuring all their students 
make substantial academic progress in a given year regardless of 
whether those students must take a federally imposed standardized test.
  My legislation also provides States with the flexibility and 
resources to develop high-quality assessments that can be used to give 
a more accurate picture of student achievement. I have heard a number 
of criticisms of the standardized tests used in Wisconsin and around 
the country--namely, that they may not measure higher-order thinking 
skills and that the results are returned to teachers too late in the 
school year, preventing teachers from receiving feedback that could 
help inform their instructional techniques to increase student 
learning. It is important that Congress listen to the feedback provided 
by teachers and administrators from around the country and provide 
States and local districts with the flexibility to develop and use 
other types of assessments in their accountability systems.

  My bill authorizes a competitive grant program to help States and 
local districts develop multiple forms of high-quality assessments, 
including formative assessments, performance-based assessments, and 
portfolio assessments. These assessments can give a more accurate and 
detailed picture of student achievement than a single standardized 
test. These assessments can also be designed to provide more immediate 
feedback to teachers and students than the statewide standardized tests 
used for Federal accountability purposes. By incorporating these richer 
assessments, teachers can better assess student learning throughout the 
school year and continuously modify their instruction to ensure all 
students continue to learn.
  These high-quality, multiple measures can be more expensive for 
States to develop and my bill recognizes that cost by authorizing a 
competitive grant program to assist States in developing these 
assessments. States and local districts can use these funds for a 
variety of purposes, including training teachers in how to use these 
assessments, creating the assessments, aligning the assessments with 
State standards, and collaborating with other States to share 
information about assessment creation.
  My legislation makes clear that these funds are not to be used for 
the purchase of additional test preparation materials. I have long been 
concerned that NCLB could result in a generation of students who know 
how to take tests, but who do not have the skills necessary to become 
successful adults. This grant program will help innovative States 
develop higher quality assessments to better ensure that the students 
in their State are prepared for careers in the 21st century, including 
the ability to think critically, analyze new situations, and work 
collaboratively with others.
  My legislation also makes clear that these multiple forms of 
assessment are not a loophole for States and local districts to avoid 
accountability. Rather, my legislation recognizes that these multiple 
measures can provide a more accurate and more complete picture of 
student achievement. My legislation makes clear that these assessments 
must: be aligned with States' academic and content standards, be peer 
reviewed by the Federal Department of Education, produce timely 
evidence about student learning and achievement, and provide teachers 
with meaningful feedback so that teachers can modify and improve their 
classroom instruction to address specific student needs.
  Congress also needs to reform NCLB's accountability provisions during 
the reauthorization process, including providing credit to schools that 
demonstrate their students have made substantial growth from year to 
year. Right now, NCLB measures students' achievement based primarily on 
reading and math tests, and students either achieve the cut score on 
the NCLB tests or they do not. A number of teachers and parents in 
Wisconsin have expressed concerned that NCLB's current approach leads 
schools to focus on students who are closest to achieving the cut score 
on tests so as to continue to boost the number of kids passing the test 
each year. As a result, parents and teachers are concern that the 
lowest achieving students who are not yet proficient and the highest 
performing students who are already proficient may be ignored in the 
effort to meet AYP each year.
  My legislation seeks to address this concern by providing flexibility 
for States that maintain annual testing to develop accountability 
models capable of tracking student growth from year to year to better 
ensure that every student, regardless of his or her current academic 
level, continues to make academic progress. States seeking to use 
growth models in their accountability systems would have to prove that 
such growth models meet a number of minimum technical requirements, 
including ensuring the growth model: is of sufficient technical 
capacity to function fairly and accurately for all students, uses 
valid, reliable, and accurate measures, has a statewide privacy-
protected data system capable of tracking student growth, does not set 
performance measures based on a student's background, and is capable of 
tracking student progress in at least reading and math. I am pleased 
there is substantial agreement in Congress that growth models should be 
part of a reauthorized ESEA, and I will work with my colleagues to 
ensure that any growth models included in the ESEA can be fairly 
implemented and are flexible enough for States and local districts to 
utilize in their accountability systems.
  NCLB set the ambitious goal that all children will be proficient on 
State reading and math tests by the year 2014. I have heard from a 
number of

[[Page S11591]]

educators and administrators in Wisconsin and around the country who 
are concerned that very few States will be able to meet NCLB's 2014 
deadline. I understand their concern, particularly in light of the fact 
that Congress has failed to provide the promised financial resources to 
meet NCLB's mandates. Our Nation needs to have high academic 
expectations for all of our students, but if Congress is going to set 
such ambitious goals for our schools to meet, we need to provide our 
schools with the resources to meet those goals.
  So far, the Federal Government has not lived up to the funding 
promises it made when Congess passed NCLB in late 2001. The 
appropriated levels for title I, part A have failed to match the 
authorized levels for title I, part A every year from 2002 to 2007, 
resulting in an underfunding of title I, part A by over $40 billion 
since 2002. It is one thing to set ambitious targets for our Nation's 
schools with adequate resources provided to reach those targets. It is 
something entirely different to hold our schools accountable for 
ensuring all students are proficient by 2014 and providing our schools 
with less resources than were promised to them when NCLB passed. My 
legislation includes a funding trigger that will waive the 2014 
deadline unless Congress fully funds title I, part A from now until 
2014. If Congress maintains the 2014 deadline and does not provide 
additional resources to our Nation's schools, we are only setting our 
schools up for further failure as we approach 2014.
  My legislation also reforms the peer-review provisions of NCLB to 
ensure that there is more transparency and consistency in the peer-
review process. States are currently required to submit their State 
plans for approval by the Department of Education, and I have heard a 
number of concerns from my State and others that States do not receive 
consistent or timely information from the Department of Education 
during peer review. States have also voiced concern about their 
inability to speak directly with peer reviewers during the peer-review 
process in order to clarify reviewers' comments made about their State 
plans.
  My bill would amend the peer-review language to ensure that the peer-
review teams contain balanced representation from State education 
agencies, local education agencies, and practicing educators. My 
legislation also includes language that requires the Secretary to 
provide consistency in peer-review decisions among the States and 
requires the Department's inspector general to conduct independent 
evaluations every 2 years to ensure consistency of approval and denial 
decisions by the Department of Education from State to State. My bill 
would also require the Secretary to ensure that States are given the 
opportunity to receive timely feedback from peer-review teams as well 
as directly interact with peer-review panels on issues that need 
clarification during the peer-review process.
  Despite my concerns regarding the testing provisions of NCLB, there 
are other provisions of the law that I continue to support. I have 
consistently heard from educators and other interested parties in my 
State of Wisconsin in favor of NCLB's requirement to disaggregate data 
by specific groups of children, including students from major racial 
and ethnic groups, students with disabilities, economically 
disadvantaged students, and English language learners. Teachers have 
told me that these provisions have added more transparency to school 
data and help to ensure that schools continue to remain focused on 
closing the achievement gap among these various groups of students and 
remain attentive to the academic needs of all students. My legislation 
builds on the requirement to disaggregate data by also requiring States 
to disaggregate high school graduation rates on the State report cards 
required under NCLB.
  Justice Louis Brandeis once said, ``sunlight is said to be the best 
of disinfectants,'' and I think his statement can be properly applied 
to NCLB's requirement to disaggregate and report academic data by 
student subgroups. Information about the achievement gaps that exist 
throughout our Nation's schools, whether they are gaps in academic 
achievement or graduation rates, can help parents, educators, local 
school board members, and others continue to advocate for education 
reform at the local level. Some States already have the ability to 
disaggregate graduation rates by NCLB's subgroups, and my legislation 
provides funding to all States to comply with this public reporting 
requirement.
  Tracking students' achievement and disaggregating student data are 
fundamental components of No Child Left Behind and require States to 
maintain large data systems containing detailed information about 
students. The bill that I am introducing will also ensure that these 
data systems are maintained in a way that safeguards individual 
privacy. Use of the data by educational entities, as well as 
disclosures of student-level data to third parties, will be carefully 
limited, and individuals will have a right to know who is inspecting 
their information and for what purpose.
  My legislation also provides additional funding for States to build 
additional infrastructure at the State and local level in order to 
improve their educational accountability systems. States and local 
districts will have to secure additional resources in order to 
implement growth models or utilize multiple forms of assessment in 
their accountability systems. My bill creates a competitive and 
flexible grant program to help ensure the Federal Government does its 
part in assisting States in accessing these resourses.
  States have varying capacity needs and funds under this program can 
help States build their privacy-protected educational databases, train 
individuals in how to use multiple measures of student achievement in 
State accountability systems, and provide additional professional 
development opportunities for both state education agency and local 
education agency staff members. I have heard from a number of State and 
local administrators who are trying diligently to reconcile increased 
Federal and State mandates with less financial resources. Providing 
additional resources will help build State and local educational 
infrastructure and will help encourage States to move to accountability 
systems that can measure student growth and use more than standardized 
test scores when making decisions about students and schools.
  There are a number of other issues that we need to address in the 
NCLB reauthorization. My bill seeks to address some of the top concerns 
I have heard about from constituents around the State related to 
testing. During the reauthorization process, we need to examine and 
modify NCLB sanctions structure to address implementation problems that 
rural and large urban districts have faced. We also need to recognize 
that every school and every school district is different and the rigid 
sanctions of NCLB may not allow States and local districts the 
opportunity to implement a variety of other innvative school reform 
efforts.
  We also need to address the diverse learning needs of students with 
disabilities and English language learners. We need to ensure that NCLB 
works in concert with the Individuals with Disabilities Education Act, 
IDEA, and that students with disabilities are provided with proper 
modifications on assessments without holding lower academic 
expectations for these students. I have long supported full funding for 
IDEA and strongly support high academic expectations for students with 
disabilities. I was disappointed the final NCLB conference report in 
2001 dropped the Senate language on full funding of the Federal share 
of IDEA, and I hope we can be successful during this reauthorization 
process in efforts to fully fund IDEA.
  The number of English language learners is growing around the 
country, including in my State of Wisconsin. I have heard concerns from 
educators around Wisconsin that NCLB does not properly address the 
unique learning needs of English language learners. Teachers are 
concerned about the lack of valid and reliable assessments for English 
language learners and the unfairness of testing these students when 
they may not yet have learned English well enough to take standardized 
tests in English. During the reauthorization, we need to ensure that 
additional resources are provided to develop valid and reliable 
assessments for English language learners so that these students are 
fairly assessed while learning the English language.

[[Page S11592]]

  There are many issues that need to be addressed during the 
reauthorization process, and my bill seeks to address some of the 
issues related to testing under NCLB. I am pleased this bill is 
cosponsored by my friend and colleague, Senator Patrick Leahy, and that 
it has the support of the American Association of School 
Administrators, the National Education Association, the National 
Association of Elementary School Principals, the School Social Work 
Association of America, the Wisconsin Department of Public Instruction, 
the Wisconsin Education Association Council, the Milwaukee Teachers 
Education Association, the Wisconsin National Board Network of 
Wisconsin National Board Certified Teachers, and the Wisconsin School 
Administrator's 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 of Administrators of Special Services.
  The Elementary and Secondary Education Act of 1965 is the key Federal 
law impacting our nation's schools, and I have long supported the law's 
commitment to improving the quality of education provided to our 
Nation's most disadvantaged students. I strongly support holding 
schools accountable for both providing equal educational opportunities 
to all our students and for continuing to work to close the achievement 
gaps that exist in our Nation's schools.
  I also strongly support ensuring that classroom teachers, local 
school districts, and States have the primary responsibility for making 
decisions regarding day-to-day classroom instruction. Unfortunately, 
under NCLB, too much of the activity in classrooms is being dictated by 
the Federal one-size- fits-all testing mandates and accountability 
provisions. The Federal Government should leave decisions about the 
frequency of standardized testing up to the States and local school 
districts that a bear the responsibility for educating our children. 
While standardized testing does have a role to play in measuring and 
improving student achievement, one high-stakes test alone cannot 
accurately or responsibly measure our students or our schools.
  NCLB was based on a flawed premise--that the way to hold schools 
accountable and close the achievement gap was for the Federal 
Government to pile on more tests and use the tests as the primary tool 
to evaluate schools. Now, 5 years into the law's implementation, we 
have evidence showing the need to reduce NCLB's burden on schools, by 
providing real support for students and teachers and by providing 
flexibility to Sates to use more than standardized tests to measure the 
achievement of students. This country has a long way to go before the 
opportunity for an equal education is afforded to all of America's 
students and Congress can take a step toward helping to ensure that 
opportunity by substantially reforming the mandates of NCLB. It is time 
to fix No Child Left Behind, and to get back to learning--not just 
testing--in all of our Nation's public schools.
                                 ______