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School Districts Find Loopholes in No Child Left Behind Law

August 14, 2007 at 6:15 PM EDT

JIM LEHRER: Now, the first of three reports on the impacts of the federal No child Left Behind law. Tonight, special correspondent for education John Merrow examines how some schools are dealing with, and trying to avoid, requirements of the law.

JOHN MERROW, Special Correspondent for Education: In June, 2,700 high school athletes gathered in North Carolina for a championship meet. The schools they represent are also engaged in a race, a race to raise achievement under No Child Left Behind. The president’s signature education law is now up for reauthorization. Margaret Spellings is secretary of education.

MARGARET SPELLINGS, U.S. Secretary of Education: All the signs that we had, all the data that we had said that we weren’t serving our kids well enough, simple as that. And for 40 years, we’ve put the money out of this department and hoped for the best, and it wasn’t working for kids.

JOHN MERROW: No Child Left Behind demands that states raise test scores or their schools could face firings and eventually be shut down. But as you’re about to see, states have discovered creative ways to win, to make their schools seem better than they actually are. Because of the complexity of the techniques, we’ll use a few track and field events to show you how to do it.

In track and field, the rules are the rules. But under No Child Left Behind, the rules change all the time. Helping make sense of it are two education experts, Kevin Carey of Education Sector, a nonpartisan think-tank, and Chester Finn, former assistant secretary of education in the Reagan administration and longtime advocate for higher academic standards.

We start with the 100-meter hurdles. In this event, all the hurdles are the same height, equally difficult to clear. No Child Left Behind establishes hurdles for schools to clear. Every year, schools must raise the percentage of students passing state tests.

KEVIN CAREY, Education Sector: The goal is to have all students proficient by 2014. And so you start off with that, a certain standard, say 30 percent, and then you increase the standard in steps.

JOHN MERROW: Steady, stair-step progress toward 100 percent proficiency, that’s how the law was supposed to work. But nine states found a loophole, a legal way to make it seem like they’re winning the hurdles race. They’ve done it by setting the early hurdles very close to the ground.

KEVIN CAREY: They’ve essentially back-loaded all of the improvement into the last few years of the law. They are essentially delaying the point in time in which they have to make the most improvement.

Cynicism among educators

Chester Finn
Thomas B. Fordham Institute
Unfortunately, it breeds cynicism among educators. They say, "Well, why shouldn't we take advantage of every angle we can take advantage of so we don't look bad in the process of not achieving that goal?"

JOHN MERROW: But to some, there's a rationale for the states' behavior.

The law says 100 percent proficiency by 2014. Is that doable?

CHESTER FINN, Thomas B. Fordham Institute: There's not an educator in the country that thinks that it's real or can happen, not one. Unfortunately, it breeds cynicism among educators. They say, "Well, why shouldn't we take advantage of every angle we can take advantage of so we don't look bad in the process of not achieving that goal?"

MARGARET SPELLINGS: I choose to believe that the people in states are working hard to improve education for their kids. Have we made progress? Have we raised the level of intensity, and the level of rigor, and the level of anxiety for grownups to respond to kids? You bet we have.

JOHN MERROW: Pressure on schools has been heightened by the law's focus on the performance of groups of students. The parallel to the world of track and field is with the relay races. In this event, every runner must do well. If one lags behind, the entire team loses. No Child Left Behind treats schools the same way, through what the law calls "subgroups."

KEVIN CAREY: A subgroup is a group of students, in most cases, that have traditionally been underserved by the education system, so minority students, low-income students, students with disabilities, students who are limited English proficient.

JOHN MERROW: As in a relay race, each of these groups must do well or the entire school loses. But the law also gave each state power to define subgroup size. Some states have used that power to define away accountability.

CHESTER FINN: The school that has, let's say, Hispanic kids in it has to have a certain number of Hispanic kids in the school before the Hispanic kids in the school count.

JOHN MERROW: So if a school has 35 Latino students and the subgroup size is 40, those kids become invisible?


JOHN MERROW: And it's not just a few students whose test scores aren't counted as a result of subgroup size.

CHESTER FINN: Approximately two million minority kids in the country don't appear in the NCLB accountability system.

JOHN MERROW: Subgroup sizes range from as low as five students to as many as 100, and subgroup sizes can change. Ten states increased their subgroup size with the Department of Education's approval.

Why don't you just say no?

MARGARET SPELLINGS: John, I am as hawkish as any person in this country is on closing the achievement gap and on accountability, and I have a record that would suggest that, absolutely. But, you know, are we on an accountability journey where we have to understand where we are and move progress over time, that we recognize the reality of turning the Queen Mary, this game-changer that No Child Left Behind has been, and bring people along and move forward over time? You bet.

Use of confidence intervals

Margaret Spellings
Secretary of Education
Five years ago, we didn't know anything about any of those schools, or we knew very little. So the very idea that we are sitting there with this level of scrutiny and intensity and understanding about the quality of our schools is huge progress.

JOHN MERROW: In track and field, there are no compromises, and measurement is precise. But if this sport calculated time and distance the way states calculate test scores, the results would be very different. Consider this event: the shot-put. However far the athlete throws, that's what counts, no more, no less. But a school's test scores often do not tell the full story because states are allowed to use a statistical device called a confidence interval.

KEVIN CAREY: One way to think about a confidence interval is this: It's election time, and you read polls, and it says Candidate A is up by 10 points. But the poll has a margin of error, plus or minus 3 points. The plus or minus three points is the confidence interval.

JOHN MERROW: Schools may add the plus side of the interval to their overall scores. It's like adding feet to a shot-putters throw, only confidence intervals are seldom as slim as 3 points.

KEVIN CAREY: The confidence intervals can be huge, 20 or 30 points.

JOHN MERROW: Twenty or 30 points?


JOHN MERROW: So if my school scored 30 and passing is 55, but the confidence interval is 30 points, we can say we passed?


JOHN MERROW: Nearly all states use confidence intervals. In Illinois, 509 schools were saved from failing because confidence intervals added up to 12 points to their scores.

CHESTER FINN: It's abusive. It's complying with -- it's stretching the letter of the law and definitely not complying with the spirit of the law. The spirit of the law said all kids. And if you exonerate such a large number of schools and kids, you're abusing the intent of the law.

JOHN MERROW: The states, are they taking advantage of the system to avoid being held accountable?

MARGARET SPELLINGS: Well, let me first say two things. First of all, because of No Child Left Behind, you're able to sit there and tell me that information. And I say, "Hooray!" I mean, five years ago, we didn't know anything about any of those schools, or we knew very little. So the very idea that we are sitting there with this level of scrutiny and intensity and understanding about the quality of our schools is huge progress.

KEVIN CAREY: I don't believe that, and I don't think that most parents believe that. I think that, when the No Child Left Behind results are released in a state like Illinois or whatever, there's no little asterisk next to the score that says "wouldn't have made it without confidence intervals."

So parents are led to believe that if the bar is 50 percent that, well, then I'm sure we must have gotten 50 percent. They have no reason to think otherwise. And so the public doesn't know as much as it should know about performance.

States set the bar

Kevin Carey
Education Sector
The state only sets the bar at six feet, and so they figure out how to get over that six-foot bar. They're never going to push themselves to try to get over the seven-foot bar because there's no reason to.

JOHN MERROW: No Child Left Behind was supposed to be straightforward, like this event. As with the high jump, the law has a bar, a requirement that students demonstrate proficiency on state tests. But it's up to the states to decide the passing scores, that is, how high to set the bar.

Under No Child Left Behind, can states fiddle with the bar?

CHESTER FINN: They can change the bar whenever they like. They can change it up; they can change it down; they can change it annually.

JOHN MERROW: Illinois lowered the passing score on its eighth grade math test and, as a result, the pass rate rose...

CHESTER FINN: Of course.

JOHN MERROW: ... 54 percent...


JOHN MERROW: ... to 78 percent.

CHESTER FINN: Magic, how you can make it easier to pass a test and more people pass it.

JOHN MERROW: Are other states doing this?

CHESTER FINN: Several states have openly and knowingly and admittedly lowered their scores.

JOHN MERROW: The law also requires states to give students a federal test. Pass rates are then compared.

KEVIN CAREY: The state of Mississippi, if you look at fourth-graders in Mississippi, on the Mississippi state test, they have the highest passing rate in the country. If you look at the federal test, they have the second lowest passing rate in the country. So that says to me that the fourth grade test in Mississippi is a lot easier.

JOHN MERROW: In Tennessee, Oklahoma and Colorado, almost 90 percent of students passed their state tests, but less than 40 percent passed the federal test. Low standards have real consequences for students.

KEVIN CAREY: Let's say you had a very talented high-jumper who had a lot of athletic ability, and if they trained really hard every day, they might be able to high jump seven feet. But the state only sets the bar at six feet, and so they figure out how to get over that six-foot bar. They're never going to push themselves to try to get over the seven-foot bar because there's no reason to.

JOHN MERROW: Why does No Child Left Behind allow the states to decide what a passing score is?

MARGARET SPELLINGS: Well, you know, I'm a big proponent of local control, obviously, and understand that, you know, if a state says, "Our kids are all proficient on our state test," but we look at the national test and see, you know, that they're far, far below the standard, you know, I'm confident that the people of that state will look at that information and will act on that.

An incentive for shortcuts

JOHN MERROW: But as No Child Left Behind ratchets up the pressure on schools, states may have more incentive to look for shortcuts.

KEVIN CAREY: The instinct of State Departments of Education seems to be to find whatever method they can find to give a break to the local educators, to give them the benefit of the doubt. But what that, in turn, does is that, I think, reduces the likelihood that students in those schools in need of improvement are going to get the resources they need to really improve.

JOHN MERROW: There are losers. If the schools aren't labeled as in need of improvement, then the kids don't get the services they need.

MARGARET SPELLINGS: Are some kids being left behind? You bet. Are some people gaming the system, and we ought to be watchful about that and hawkish about it? You bet. And that's -- you know, we do our very best to do that.

JOHN MERROW: Are you going to close these loopholes?

MARGARET SPELLINGS: Well, we passed the very best law we could five years ago, when about half of the states had no annual measurement systems, so we're making progress. Should we make improvements to the law as we reauthorize it this year? Heck yes.

JOHN MERROW: The reauthorization of No Child Left Behind is still in an early phase. So far, the Department of Education has not sent Congress its list of recommended improvements.

JIM LEHRER: Part two of John Merrow's series will air tomorrow. It looks at what some failing schools in San Diego are doing to meet the law's standards. For more about the No Child Left Behind law, visit our Web site. Two House members, Democrat George Miller and Republican Howard McKeon, will answer your questions online. To participate in the forum, go to