A Small but Costly Step Toward Reform: The Conference EducationBill

Report Education

A Small but Costly Step Toward Reform: The Conference EducationBill

December 13, 2001 16 min read
Krista Kafer
Krista Kafer
Former Senior Education Policy Analyst
Krista is a former Senior Policy Analyst in the Education department.

Eleven months ago, President George W. Bush released No Child Left Behind, his ambitious education reform plan, which emphasized accountability, flexibility, opportunity, structural change, and quality improvements. In the near future, Congress will vote on an Elementary and Secondary Education Act (ESEA) reauthorization that incorporates several of the President's reforms. 1But the bill is not a sweeping victory for reform; rather, it largely holds the middle ground between reform and the status quo.

There is some progress. The bill contains some of the President's accountability plan, many of the quality improvements, a little consolidation, strong local flexibility, and some new opportunities for children in failing schools.

However, most of the old federal education programs, many of which are ineffective and wasteful, are perpetuated even if not explicitly authorized. In contrast to the President's proposal, there is little state flexibility, as well as fewer opportunities for children to escape failing schools.

Moreover, the bill is a vehicle for increased spending on existing programs. In return for moderate improvements, it will cost taxpayers $26.3 billion the first year, if fully appropriated. The total could climb to over $37 billion a year by the end of the authorization period. That is more than triple the authorization of the 1994 Act.2

The bill's strongest reform is the testing and reporting provisions. These will give parents and educators information about student achievement. But without opportunity, accountability lacks true potential. Information is useful only if one can act on it. Although giving students in failing schools the right to tutorial services and intra-district school choice is a good first step, it will not help most children escape failing schools. These are the very children the Elementary and Secondary Education Act of 1965 was created to help.

For their sake, Congress will need to take the next step and empower families to chose schools from a full range of options. State and district leadership must also rise to the challenge of leaving no child behind by taking advantage of the accountability system and flexibility options to maximize potential of the legislation.

A Record of Poor Results.
The history of the Elementary and Secondary Education Act is replete with appealing rhetoric, but it is also short on results. Despite the $130 billion spent over the past three decades specifically for poor children, a stunning 60 percent of underprivileged 4th graders still cannot read at a basic level, according to the National Assessment of Educational Progress (NAEP), 3

It would be a profound mistake for Members of Congress to believe that if they adopt this conference report, they have finished with education reform. Unless Congress builds on the modest reforms in this bill with new legislation to empower parents and students, the legislation could take its place as another costly but ultimately inconsequential effort at real improvement. By enacting education choice legislation, for example, Congress could ensure that parents are able to act on the information provided by the conference bill.

Every reauthorization, bills are heralded as great reforms…

Elementary and Secondary Education Act of 1965

"No law I have signed or will ever sign means more to the future of America."
--President Lyndon Johnson, April 11, 1965

Elementary and Secondary Education Amendments of 1967

"This conference report … is of transcending importance not only to the America of today but for generations to come in the future."
--Representative John McCormack, December 15, 1967

Elementary, Secondary, and Other Education Amendments of 1969

"As I stated, in my judgment, this is one of the most important conference reports that has ever been brought before this chamber."
--Representative Carl Perkins, April 7, 1970

Education Amendments of 1974

"Today, and for generations to come, America will benefit from this law which expresses our national commitment to quality education for all of our children."
--President Gerald Ford, August 21, 1974

Education Amendments of 1978

"This year with the help of education and parent associations, we have together taken an historic step in the evolution of the Federal role in education."
--President Jimmy Carter, November 1, 1978Elementary and Secondary School

Improvement Amendments of 1988

"Mr. Speaker, the provisions of this conference agreement will, in the coming years, assist our schools in providing the best educational opportunities possible for our Nation's schoolchildren."
--Representative Martin Frost, April 19, 1988

Improving America's Schools Act of 1994

"It is not an overstatement to say this is the most important reauthorization in this legislation's history. Our Senate bill incorporates many of the excellent proposals sent to us by President Clinton, and it reshapes the manner in which the Federal Government supports public schools across the Nation."
--Senator Ted Kennedy, July 27, 1994



Although testing is required by current law, under The Bush Plan, testing and reporting systems would be better coordinated and universal. The plan would require states specifically to test students in 3rd through 8th grades in reading and math, using state-developed tests linked to state standards. Test results would be disaggregated by subgroup and provided to the public. State achievement trends would be confirmed by state NAEP scores in 4th and 8th grades on math and reading.

Schools whose students failed to make progress would receive assistance but would also face corrective action for continued failure. Such schools would be required to offer students public school choice. Under the original Bush proposal, if the school continued to fail, the disadvantaged students would have been able to take their portion of Title I funds and transfer to another public or private school or use the money to purchase supplemental services.

The conference bill follows the Bush model halfway. The bill requires testing, NAEP participation, annual school report cards, and disaggregated data to ensure that no child, regardless of income or race, would be left behind. States would be required to bring all students to full proficiency on state math and reading assessments. States would set proficiency goals incrementally to meet the final goal. Schools would be required to demonstrate adequate yearly progress (AYP) toward meeting these goals. They would be eligible for a "safe harbor" waiver if they can demonstrate that students in a particular subgroup are making significant progress even if they are not meeting AYP requirements.

If a school fails to make AYP for two consecutive years, the school district would have to offer public school choice with transportation, unless prohibited by state law, no later than the first day of the next school year. If the school fails to make AYP for another year, the district must continue to provide public school choice and would have to offer supplemental services to low-income children. The 2001-2002 school year will serve as the baseline year for states to determine AYP. The 2002-2003 school year will serve as the confirmation year for verification of the first year results. Schools must meet AYP for two consecutive years to leave corrective action status.

Schools that have already been identified as failing before enactment would face corrective action no later than the 2002-2003 school year. There are potentially at least 3,000 failing public schools nationwide that would have to offer supplemental services and intra-district school choice in 2002-2003. 4 Students would also be allowed to transfer to another public school if they are victims of crime or attend a public school designated unsafe by the state.

Public school choice is limited to intra-district school choice, although states and districts could go further and allow inter-district choice. For children in large urban districts where many of the schools are failing, there could be little choice. Los Angeles School Superintendent Roy Romer told The New York Times that due to overcrowding, "there was no option of public school choice" for students in his schools.5 Because this provision does not give students access to successful out-of-district and private schools, it limits both the opportunities for children and the incentive for schools to improve.

Congress will need to build on this first step to give poor families access to quality schools. The bill sets a precedent by allowing parents to choose the supplementary service provider - public or private - which best meets their children's needs. This is a promising area for future endeavors, one that offers some hope to parental choice advocates.

The Missing Piece: Real School Choice

Regulation alone cannot improve schools. Over the past three decades, the ESEA has grown from 34 pages to over 600 (current legislation exceeds 1,100 pages), and from six programs to over 60. The level of congressional authorization has grown, as has the level of administrative regulation. Like the conference bill, the 1994 bill emphasized standards, accountability, and flexibility. The law requires that states develop content standards, student assessments, and consequences for failing schools including public school choice. Yet most states have not complied with the law's accountability mandates. As of 2001, only 16 states have approved testing and standards systems. No state has lost money due to non-compliance. 6

Despite high hopes, whether the law has had any affect on academic achievement is open to serious question. Long-Term Trend NAEP assessments show no statistical change in scores between 1994 and 1999 for science, reading, or math. On the most recent assessment, the 2000 NAEP Science Assessment, only 18 percent of students were proficient. Over 50 percent of all economically disadvantaged children scored below basic on the 2000 NAEP reading, math , and science tests.7 Additionally, ACT scores have remained stagnant for the past five years.

Accountability to a government agency will not sufficiently raise achievement. Accountability to parents is necessary, and that can be achieved only when there are meaningful choices.

Last year, President Bush explained the importance of this concept:

The greatest benefit of testing--with the power to transform a school or system--is the information it gives to parents…. Armed with that information, parents will have the leverage to force reform…. But reform also requires options. Monopolies seldom change on their own--no matter how good the intentions of those who lead them. Competition is required to jolt a bureaucracy out of its lethargy. 8

Choice is integral to accountability. Under the Bush plan, all states would have to enable students in poor-performing schools to attend a better school, public or private. In districts where most public schools are mired in failure, the opportunity to attend a quality private school is essential.

Moreover, choice inspires excellence. The increased competition resulting from choice spurs traditional public schools to reform to improve achievement. Florida's "A-Plus" program, for example, puts schools on a "failing" list if they do not succeed in educating their students. If the school continues to receive a failing grade, students can leave, making use of the state's voucher program.

Failing schools have responded to this pressure; according to Manhattan Institute Senior Fellow Jay P. Greene, "Failing schools that faced the prospect of vouchers made improvements that were nearly twice as large as the gains displayed by other schools in the state." 9

K-12 Education Funding
Title I Disadvantaged Youth

Consolidation: Not By Half

When detailing his reform plans during the campaign, President Bush pledged

I don't want to tinker with the machinery of the federal role in education. I want to redefine that role entirely…. I will begin by taking most of the 60 different categories of federal education grants and paring them down to five…. Within these divisions, states will have maximum flexibility to determine their priorities. 10

The Bush plan set a limited number of funding categories, thereby enabling states and districts to implement programs within basic categories which best met their students' needs. To achieve goals within those categories, schools could rely on existing programs or design an innovative approach.

The conference report contains 45 authorizations, two less than the House bill and 44 less than the Senate bill. It is significant that the bill reduces the number of authorizations from the Senate bill that was not consolidated but much longer than current law. However, the conference bill contains 13 more programs than the President requested in his budget. There are also numerous non-authorized programs. Instead of focusing funding on national priorities, the bill persists in scattering funds to various programs, many of which have no merit. For example:

  • Providing grants to combat hate crimes.
    The bill authorizes funding for training, curricula, and instructional materials for the prevention of "crime and conflicts motivated by hate" through a Hate Crimes Prevention program. This controversial measure was left out of the House version because of concerns that it infringed First Amendment rights. Many Americans who are proponents of the traditional American principle of equal justice under law oppose funding programs that teach children that thoughts and beliefs can make some crimes more grievous than others.

  • Politically correct gender programs.
    The bill includes the Women's Education Equity Act, which funds programs to promote equity policies, programs, activities, and initiatives because, according to the legislation, "teaching and learning practices in the United States are frequently inequitable as such practices relate to women and girls." Academic achievement belies this assertion. On the recently released National Assessment of Educational Progress 4th grade reading test, girls outscored boys. In fact, girls outscore boys on all three grade levels for which the NAEP tests reading. The 1998 NAEP Writing Report Card for the Nation reveals that boys have lower average test scores at all three grade levels and are half as likely to score in the proficient and advanced categories. Boys are over-represented in Special Education. They are less likely than girls to achieve the honor roll, graduate from high school, or go to college.

  • Punishing success.
    The bill perpetuates the Education Finance Incentive Program, which would provide grants to states that Washington considers to have a better education financing system. The complicated formula is rigged to reward states that spend more money with no regard for how those resources are spent. Presumably, states with high achievement and low expenditures--those that get more for their dollars--would not be eligible. States with high funding and low achievement, however, would be eligible.

House negotiators should be commended for reducing the number of programs from the Senate bill. However, 45 authorized programs and numerous non-authorized programs cannot be considered a serious consolidation effort. The extra programs include the Educational, Cultural, Apprenticeship, and Ex-change Programs for Alaska Natives, Native Hawaiians, and Their Historical Whaling and Trading Partners in Massachusetts, Excellence in Economic Education, Foreign Language Assistance Program, and others.

Quality Improvements

The conference bill includes many of the quality improvements in the President's plan.

  • Reading First.
    The bill authorizes the President's Reading First initiative, which would help states and schools establish research-based reading programs for children in kindergarten through 3rd grade. The bill also establishes the Early Reading First program to boost reading readiness for children in high-poverty areas through early identification and early reading interventions.

    According to Dr. G. Reid Lyon at the National Institutes of Health,

    by putting in place well designed evidence-based early identification, prevention, and early intervention programs in our public schools…20 million children today suffering from reading failure could be reduced by approximately two-thirds…. Thus, not only can the President's proposal lead to tremendous savings in human capital, but the cost savings will also be significant--savings that can be applied to other pressing educational issues within States and local districts 11

    Teaching reading the right way from the beginning will enable millions of children to master reading and excel in other subjects.

  • Teacher Quality.
    The conference bill consolidates several teacher programs to allow local school districts to use the funds for professional development, recruitment, and the hiring of teachers. It allows states to invest in a variety of effective teacher quality initiatives such as alternative routes to certification, tenure reform, merit pay, teacher testing, and funds for teachers to choose professional development activities (Teacher Opportunity Payments). The bill sets performance measures for professional development programs and emphasizes subject area competency. It also includes a provision to shield teachers, principals, and other school professionals from frivolous lawsuits when they engage in reasonable actions to maintain order and discipline.

  • Bilingual Education.
    Although the bilingual education proposal is not as bold as that which passed the House, the conference bill mirrors much of the President's plan and is an improvement over current law.

    Like the No Child Left Behind plan, the conference bill would refocus bilingual education on the acquisition of English, consolidating bilingual education programs administered by the Office of Bilingual Education and Minority Language Affairs into performance-based grants to states and school districts. States would be held accountable for annual increases in English proficiency and required to teach children in English after three consecutive years in school. The bill eliminates the 75 percent rule which requires that 75 percent of all federal bilingual education funds be used for programs taught in a child's native language. This would lift the restriction that prevents teachers from using methods of instruction that have been proven to help students learn English, such as English immersion programs. The bill also goes beyond the President's plan to require that teachers be fluent in English and that parents be notified and allowed to remove their children from bilingual classes.

    Unfortunately, the formula grant is jeopardized by a "trigger" provision. Unless appropriators meet authorizers' demands for $650 million, the formula grant reverts to a competitive grant system. The bill also grants schools waivers from the three year rule.

  • Other.
    The bill maintains the President's initiatives to allow faith-based community providers to administer safety and drug abuse prevention programs. It also requires that scientifically based research must be at the core of the ESEA programs.


The conference bill does not include the President's charter states provision, also known as the "Straight A's" proposal. Instead, it allows states to transfer up to 50 percent of their non-Title I administrative funds. (Certain other programs are also excluded.) Seven states would be given flexibility in using their administrative funds for a variety of programs.

The bill does, however, include significant local flexibility options. Every school district will be able to transfer up to half of its non-Title I funds (other programs are also excluded) at its discretion. Additionally, the bill establishes 150 local flexibility demonstration projects across the nation. These districts would receive a waiver from federal rules covering four programs--teacher quality, technology, Safe & Drug-Free Schools, and the Innovative Programs Block Grant--in exchange for signing an "accountability contract" with the U.S. Secretary of Education to improve student achievement. States and districts participating in flexibility demonstration projects would be authorized to coordinate their activities by forming "flexibility partnerships." Rural schools would also be granted greater flexibility.


Although the Elementary and Secondary Education Act reauthorization contains the major themes of the Bush No Child Left Behind plan--accountability, opportunity, flexibility, structural change, and quality improvement--it is only a modest representation of those key elements. The bill perpetuates ineffective and wasteful programs and is authorized at twice the funding level of the 1994 reauthorization in the first year alone.

Incremental change is better than nothing, and House negotiators should be commended for ensuring that many of their reforms were included in the final bill. The bill's testing and reporting provisions will provide parents, teachers, and local leaders with a wealth of information, but in a departure from the Bush plan, many parents will not be able to use that information in a meaningful way.

Congress and the states should build on this legislation by enacting significant choice legislation. Without true accountability to parents, this bill could perpetuate the historical trend of yet another massive funding increase without a corresponding rise in student achievement. In every authorization, Members of Congress have heralded their bills as major legislative contributions to American education. Achievement scores, however, show that these measures have had little, if any, significance in improving the performance of American schoolchildren.

Krista Kafer, Senior Policy Analyst for Education, The Heritage Foundation

1 - H.R. 1, the No Child Left Behind Act of 2001, sponsored by Representative John Boehner (R-OH), was passed on May 23, 2001. The Better Education for Students and Teachers Act, sponsored by Senator Jim Jeffords (I-VT), was passed on June 14. A conference committee of Members of each chamber produced a combined bill for a final vote.

2 - Title I totals rise to $25 billion a year in the sixth year. If other program authorizations remain constant, the total authorization exceeds $38 billion.

3 - See NAEP reading assessments for 1992-2000, at http://nces.ed.gov/nationsreportcard/reading/.

4 - U.S. House Committee on Education and the Workforce, H.R. 1 Conference Report Highlights, October 10, 2001, see http://edworkforce.house.gov/issues/107th/education/nclb/parentaloptions.htm .

5 - Diana Jean Schemo, "School Leaders Contend Laws May Cause Lower Standards," The New York Times, July 13, 2001.

6 - Erik Robelen, "States Sluggish on Execution of 1994 ESEA," Education Week, November 28, 2001.

7 - See NAEP Long-Term Trend assessments at http://nces.ed.gov/nationsreportcard/about/trend.asp.

8 - President George W. Bush, "George W. Bush for President Official Site: Issues," p. 6, at http://www.georgewbush.com/issues/education.html.

9 - Jay P. Greene, "An Evaluation of the Florida A-Plus Accountability and School Choice Program," The School Choice Advocate: The Newsletter of the Milton & Rose D. Friedman Foundation, May 2001, p. 3. For the full report, see /static/reportimages/B9DF3D06ACBD17A6EB3A1217E0375F5F.pdf.

10 - George W. Bush, "A Culture of Achievement," speech delivered in New York, New York, October 5, 1999, p. 4, at http://www.georgewbush.com/News/speeches/100599_culture.html(June 11, 2001).

11 - Measuring Success: Using Assessments and Accountability to Raise Student Achievement, Committee on Education and the Workforce, U.S. House of Representatives, 107th Cong., 1st Sess., March 8, 2001, at http://edworkforce.house.gov/hearings/107th/edr/account3801/wl3801.htm. Dr. Lyon is Chief of the Child Development and Behavior Branch of the National Institute of Child Health and Human Development at NIH.


Krista Kafer
Krista Kafer

Former Senior Education Policy Analyst