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Congressmen Warn Education Department Not To Let Minority Students Slip Through The Cracks

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The grandfather of the No Child Left Behind Act is putting the feds on notice, warning them not to pervert the education law's principles -- and he's stressing that he's not alone in his fight.

NCLB co-author Rep. George Miller (D-Calif.), ranking member of the House Committee on Education and The Workforce, joined seven other Democratic House members -- representatives of the Congressional Black Caucus, the Congressional Asian Pacific American Caucus and the Congressional Hispanic Caucus -- in writing a letter to the U.S. Education Department Wednesday. The letter cautions the administration to uphold No Child Left Behind's commitment to the rights of poor and minority students to a free and equitable public education, even as the department reviews states' bids to extend their waivers from the law.

"The federal role in education is historically a civil rights role, serving to protect and promote equity," the representatives wrote. "However, we are concerned that some state policies or practices, approved under the initial round of waivers, have not lived up to this mission."

In the letter, the congressmen seek to ensure that the department abides by that commitment as it reviews states' waivers renewals. The letter also raises questions regarding the reporting of graduation rates, tests for students with disabilities and the use of reporting methods that can mask minority students' performance. "Some states may seek changes during the extension process that could further weaken equity provisions," they wrote. "Therefore, we call on you to hold a high bar during the renewal process and to require states to make mid-course corrections."

Miller co-authored No Child Left Behind, the 2002 George W. Bush-signed law that required the regular standardized testing of students and the reporting of academic results down to the level of various races and abilities. Miller has announced he will retire in 2015, but said in an interview that the letters' co-signers, including Reps. Marcia Fudge (D-Ohio), Judy Chu (D-Calif.) and Rubén Hinojosa (D-Texas), demonstrate that his departure doesn't mean the issue is going to disappear.

"I'm never going away," Miller told The Huffington Post. "This runs way beyond my tenure in Congress. The caucuses have been very diligent."

He said they're sending the letter now to affect the waiver extension process from the outset. "We've had concern with how [states] may be hiding some of the performance of English-learning students and students with disabilities," he said. "Historically, states and school districts have tried to game the system ... but that's not what the federal law says. You don't get to do that."

The administration said it is receptive to those concerns. "The department shares the same commitment to protecting and promoting equity for students," said Dorie Nolt, U.S. Secretary of Education Arne Duncan's press secretary. "The purpose of flexibility is to provide educators with freedom from specific requirements of the No Child Left Behind Act in exchange for rigorous and comprehensive plans designed to improve educational outcomes for all students, close achievement gaps, increase equity and improve the quality of instruction in the classroom."

Many have criticized NCLB for its punitive approach to school accountability, alleging that raw standardized tests scores are too blunt a measure for that purpose. After Congress failed to rewrite it, Obama and Duncan told states in 2011 that they could avoid some of the law's strictures -- particularly those punishing schools for low raw test scores -- by agreeing to preferred policies. Those policies include a new system for setting school and state performance goals, and the creation of teacher evaluations that factor in student test scores. Since then, most states have applied for and received waivers, many of which expire soon, and now need to ask the Education Department to renew them.

But Miller and other civil rights advocates, such as the advocacy firm the Education Trust, have criticized the administration from backing too far off from NCLB's promise of equity for poor and minority students. In Wednesday's letter, Miller and his colleagues specify that the waivers have allowed some states too much leniency in counting graduation rates. They want the Education Department to release specific information about the performance of students with disabilities and English-language learners under the new waiver system.

Miller also said that some states appear to be backsliding on a commitment to provide students with disabilities with equitable access to high-quality academics. "We see some states suggesting that maybe they don't have a full responsibility to students with disabilities," he said. "They're proposing bringing back the 2 percent exclusion, they're suggesting there are alternatives." The 2 percent exclusion rule had allowed a state to have up to 2 percent of its most severely disabled students take an alternative assessment; that threshold was lowered to 1 percent in an effort to prevent states from lowering standards for students with disabilities. But New York is seeking to bring back the higher threshold.

The letter also took issue with the department's lack of enforcement of a provision that requires states to ensure that poor and minority students have equal access to high-quality teachers, as defined by any measure. Draft regulations for waiver renewal would have required states to show they were enforcing the provision, but after much pushback, the department pulled back from that requirement, saying instead they would eventually create a "50-state plan" that covers states that do not receive waivers. "This is an important equity policy that has rarely, if ever, been enforced," the congressmen wrote in the letter. "We expect ED to address the teacher equity issue in some way through the extension process."

Miller said he disagreed with the removal of equitable distribution from the renewal requirements. "I certainly don't expect the Department of Education to sanction a backsliding on the effort to have as many children have access to a highly effective teacher as possible," he said.

In a call with reporters in January, Deb Delisle, assistant secretary of elementary and secondary education, said that the 50-state plan is still in development but will first require states to update their written plans on how to ensure equitable access to the best teachers, and that the department's Office of Civil Rights could eventually address the issue. "What's really important to realize and emphasize is that we didn't step away from the equitable distribution, but rather than viewing it only in terms of only the states engaged with waivers, we thought it best to get a 50-state strategy," Delisle said.

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