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28–431 PDF 2006

NO CHILD LEFT BEHIND: DISAGGREGATING

STUDENT ACHIEVEMENT BY SUBGROUPS

TO ENSURE ALL STUDENTS ARE LEARNING

HEARING

BEFORE THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

June 13, 2006

Serial No. 109–43

Printed for the use of the Committee on Education and the Workforce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

or 

Committee address: http://edworkforce.house.gov 

(II)

COMMITTEE ON EDUCATION AND THE WORKFORCE 

HOWARD P. ‘‘BUCK’’ McKEON, California, Chairman

Thomas E. Petri, Wisconsin, Vice Chairman 

Michael N. Castle, Delaware 

Sam Johnson, Texas 

Mark E. Souder, Indiana 

Charlie Norwood, Georgia 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Patrick J. Tiberi, Ohio 

Ric Keller, Florida 

Tom Osborne, Nebraska 

Joe Wilson, South Carolina 

Jon C. Porter, Nevada 

John Kline, Minnesota 

Marilyn N. Musgrave, Colorado 

Bob Inglis, South Carolina 

Cathy McMorris, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Bobby Jindal, Louisiana 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

Thelma D. Drake, Virginia 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

[Vacancy] 

George Miller, California, 

Ranking Minority Member 

Dale E. Kildee, Michigan 

Major R. Owens, New York 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Ron Kind, Wisconsin 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Betty McCollum, Minnesota 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Chris Van Hollen, Maryland 

Tim Ryan, Ohio 

Timothy H. Bishop, New York 

[Vacancy]

Vic Klatt, Staff Director 

Mark Zuckerman, Minority Staff Director, General Counsel 

(III)

C O N T E N T S 

Page

Hearing held on June 13, 2006 ............................................................................... 1

Statement of Members: 

McKeon, Hon. Howard P. ‘‘Buck,’’ Chairman, Committee on Education 

and the Workforce ......................................................................................... 1

Prepared statement of ............................................................................... 2

Miller, Hon. George, Ranking Minority Member, Committee on Education 

and the Workforce ......................................................................................... 3

Prepared statement of ............................................................................... 4

Statement of Witnesses: 

Brittain, John C., chief counsel and senior deputy director, Lawyers’ 

Committee for Civil Rights Under Law ...................................................... 21

Prepared statement of ............................................................................... 23

Kuhlman, Cynthia, Ph.D., principal, Centennial Place Elementary School 15

Prepared statement of ............................................................................... 16

Peiffer, Ronald A., Ph.D., deputy State superintendent, office of academic 

policy, Maryland State Department of Education ...................................... 11

Prepared statement of ............................................................................... 13

Simon, Hon. Raymond, Deputy Secretary of Education, U.S. Department 

of Education ................................................................................................... 6

Prepared statement of ............................................................................... 8

(1)

NO CHILD LEFT BEHIND: DISAGGREGATING

STUDENT ACHIEVEMENT BY SUBGROUPS 

TO ENSURE ALL STUDENTS ARE LEARNING 

Tuesday, June 13, 2006

U.S. House of Representatives 

Committee on Education and the Workforce 

Washington, DC

The committee met, pursuant to call, at 10:30a.m., in room 2175, 

Rayburn House Office Building, Hon. Howard P. ‘‘Buck’’ McKeon 

[chairman of the committee] presiding. 

Present: Representatives McKeon, Petri, Castle, Johnson, Ehlers, 

Biggert, Platts, Osborne, Wilson, Porter, Kline, Marchant, Price, 

Boustany, Foxx, Kuhl, Miller, Kildee, Andrews, Scott, Woolsey, 

McCarthy, Kucinich, Holt, Davis of California, McCollum, Davis of 

Illinois, Grijalva, Van Hollen, and Bishop. 

Staff Present: Amanda Farris, Professional Staff Member; Ray 

Grangoff, Legislative Assistant; Jessica Gross, Press Assistant; 

Richard Hoar, Professional Staff Member; Lindsey Mask, Press 

Secretary; Deborah L. Emerson Samantar, Committee Clerk/Intern 

Coordinator; Toyin Alli, Minority Staff Assistant; Alice Cain, Minority Legislative Associate/Education; Lauren Gibbs, Minority 

Legislative Associate/Education; Lloyd Horwich, Minority Legislative Associate/Education; Tom Kiley, Minority Communications Director; Joe Novotny, Minority Legislative Assistant/Education; and 

Mark Zuckerman, Minority Staff Director/General Counsel. 

Chairman MCKEON. The quorum being present, the Committee 

on Education and Workforce will come to order. We are holding 

this hearing today to hear testimony on, No Child Left Behind: 

Disaggregating Student Achievement by Subgroups to Ensure All 

Students Are Learning. 

With that, I ask unanimous consent for the hearing record to remain open for 14 days to allow members’ statements and other extraneous material referenced during the hearing to be submitted 

into the official hearing record. Without objection, so ordered. 

Good morning. I would like to thank my colleagues for joining me 

here today for the second in our series of hearings on the No Child 

Left Behind Act. I extend a special note of gratitude to our Committee’s senior Democrat, Mr. Miller, and the Education Reform 

Subcommittee’s Chairman, Mr. Castle, for joining us and helping 

to spearhead this important series of hearings. I think all of us can 

agree that these hearings will be a tremendous asset as we approach next year’s reauthorization of this act. 

2

Today’s hearing will address concerns that the test scores of 

some disadvantaged and minority students are not being 

disaggregated in school and district adequate yearly progress calculations under the No Child Left Behind Act. Breaking down student achievement data by subgroups, such as African-American 

students, special education students, and limited English proficient 

students, is required by No Child Left Behind to ensure that academic progress is being made overall and within key subgroups. 

No Child Left Behind also requires that disaggregated subgroup 

data must be statistically significant and must not allow students 

to be included—must not allow students to be individually identified. These provisions were included in the law because Congress 

wanted to ensure that schools and districts were not unfairly identified based on the performance of a very small number of students. 

We also wanted to ensure that the privacy of all students was protected. 

While I understand that this is a complex issue, I am concerned 

that States are being allowed to establish minimum subgroup sizes 

that are too large and are thereby failing to disaggregate data for 

too many students. For instance, one Associated Press article cited 

that as many as 1.9 million students’ test scores—that is one out 

of every 14 scores—are not being disaggregated among accountability subgroups, and this certainly was not the intent of Congress 

when we passed No Child Left Behind in 2001. 

My question is one I am sure I share with many of my Committee colleagues: How do we ensure that the maximum number of 

students have their scores disaggregated while still ensuring that 

schools and districts that are truly in need of additional assistance 

are identified as not making adequate yearly progress? My colleagues on both sides of this Committee have joined me in writing 

to Secretary Spellings to share our concerns, and I am eager to 

hear from Deputy Secretary Simon as to what steps the Department is taking to ensure this issue will be addressed fairly and effectively. 

I am also eager to learn more about how the disaggregation of 

student performance under No Child Left Behind is helping to ensure that students are learning. The ultimate goal of No Child Left 

Behind is, of course, to leave no child behind. To allow anything 

shy of that would be a huge disservice to students, parents, taxpayers and eventually our future. This is a good law worthy of our 

continued support as well as our continued scrutiny. And I am 

looking forward to this hearing and the remaining hearings in this 

series. 

With that, I now yield to my friend, Mr. Miller, for his opening 

statement. 

[The prepared statement of Chairman McKeon follows:]

Prepared Statement of Hon. Howard P. ‘‘Buck’’ McKeon, Chairman, 

Committee on Education and the Workforce 

Good morning. I’d like to thank my colleagues for joining me here today for the 

second in our series of hearings on the No Child Left Behind Act. I extend a special 

note of gratitude to our Committee’s senior Democrat, Mr. Miller, and the Education 

Reform Subcommittee’s Chairman, Mr. Castle, for joining us and helping to spearhead this important series of hearings. I think all of us can agree that these hearings will be a tremendous asset as we approach next year’s reauthorization of the 

act. 

3

Today’s hearing will address concerns that the test scores of some disadvantaged 

and minority students are not being disaggregated in school and district adequate 

yearly progress calculations under the No Child Left Behind Act. 

Breaking down student achievement data by subgroup—such as African-American 

students, special education students, and limited English proficient students—is required by No Child Left Behind to ensure that academic progress is being made 

overall and within key subgroups. 

No Child Left Behind also requires that disaggregated subgroup data must be statistically significant and must not allow students to be individually identified. These 

provisions were included in the law because Congress wanted to ensure that schools 

and districts were not unfairly identified based on the performance of a very small 

number of students. We also wanted to ensure that the privacy of all students was 

protected. 

While I understand that this is a complex issue, I am concerned that states are 

being allowed to establish minimum subgroup sizes that are too large, and are 

thereby failing to disaggregate data for too many students. For instance, one Associated Press article sited as many as 1.9 million students’ test scores—that’s 1 out 

of every 14 scores—are not being counted among accountability subgroups. And this 

certainly was not the intent of Congress when we passed No Child Left Behind in 

2001. 

My question is one I am sure I share with many of my Committee colleagues: how 

do we ensure that the maximum number of students have their scores 

disaggregated, while still ensuring that schools and districts that are truly in need 

of additional assistance are identified as not making adequate yearly progress? 

My colleagues on both sides of this Committee have joined me in writing to Secretary Spellings to share our concerns, and I am eager to hear from Deputy Secretary Simon as to what steps the Department is taking to ensure this issue will 

be addressed fairly and effectively. I am also eager to learn more about how the 

disaggregation of student performance under No Child Left Behind is helping to ensure that students are learning. 

The ultimate goal of No Child Left Behind is—of course—to leave no child left 

behind. To allow anything shy of that, would be a huge disservice to students, parents, taxpayers, and—eventually—our future. This is a good law, worthy of our continued support, as well as our continued scrutiny. And I am looking forward to this 

hearing and the remaining hearings in this series. With that, I now yield to my 

friend, Mr. Miller for his opening statement. 

Mr. MILLER. Thank you, Mr. Chairman, and thank you very 

much for calling this hearing to discuss a very troubling problem 

with the way that No Child Left Behind law is being implemented, 

one that undermines No Child Left Behind’s central promise to provide an equal education to all of America’s children. 

At its core, NCLB is a civil rights law. By holding schools accountable for the education of all children, the law seeks to close 

the achievement gap between white students and minority students. That achievement gap, which is really an opportunity gap, 

has stubbornly persisted for generations. To prove that the achievement gap is closing, the law requires that a State break down annual test results by subgroups, such as income and race. By 

disaggregating the data in this way, the school’s and the school district’s overall academic performance cannot obscure the problems, 

that specific groups of its students are struggling. When poor minority children are not achieving proficiency along with their peers, 

States must provide remedies targeted to the schools those students attend. 

The law’s unyielding demands have raised expectations and, in 

many places, have raised achievement. That is why it is more troubling to learn that some States appear to be circumventing the primary goal of the law and exploiting the legal loophole in order to 

exclude from accountability the measures of scores of children from 

racial and ethnic minority groups and with disabilities. 

4

In a recent investigation, the Associated Press found that the 

test scores of nearly 2 million children were not being counted 

under the law’s required racial categories. The test scores of nearly 

half of all Native American children in the United States are being 

excluded from their schools’ subgroup data. There are scores of—

so are the scores of one-third of all Asian children in the United 

States, including all 65,000 Asian children who live in the State of 

Texas, and so are the scores of about 10 percent of black and Hispanic children nationwide. Overall, these test scores of black, Hispanic, Asian and Native American children are seven times more 

likely to be excluded from subgroup data than are the test scores 

of white children. 

It is wrong for States to exclude these children’s scores, and it 

is wrong for the Department of Education to allow this practice. 

This practice undermines No Child Left Behind as a force for the 

advancement of civil rights and educational achievement. No Child 

Left Behind’s philosophical roots go back to the Supreme Court’s 

1954 Brown v. Board of Education decision. The reason we needed 

No Child Left Behind in the first place was that, five decades after 

the Brown decision, our country still fails to offer poor minority 

children the same educational opportunities as their peers. Poor 

minority children are still more often assigned to less challenging 

classes with less qualified teachers than are higher-income and 

white students. This opportunity gap or the lack of access to an 

equal education affects academic achievement; 74 percent of white 

fourth graders read well, nearly twice the rate of black fourth graders. Latino and Native American fourth graders fair only slightly 

better. More than half a century after the Nation committed itself 

to education equality, fewer than half of all minority children can 

read proficiently. It was this two-class educational system that No 

Child Left Behind was intended to put an end to once and for all. 

And I am looking forward to hearing the testimony of Deputy Secretary Simon. In April—I want to put on the record that, in April, 

after the Associated Press’s investigation was published, 15 Committee members wrote to Secretary Spellings and asked for the Department’s immediate attention to this issue. Unfortunately, we 

are still waiting that response, and I hope that we will receive part 

of that response this morning. I look forward to hearing from all 

of the witnesses what can be done through implementation and enforcement of this provision to ensure the true meaning of the spirit 

of No Child Left Behind is, in fact, honored, and children are given 

the opportunity to become proficient in their education. Thank you 

again, Mr. Chairman, for convening this most important hearing. 

[The prepared statement of Mr. Miller follows:]

Prepared Statement of Hon. George Miller, Ranking Minority Member, 

Committee on Education and the Workforce 

Mr. Chairman, I want to thank you for calling this hearing today to discuss a very 

troubling problem with the way the No Child Left Behind law has been implemented—one that undermines No Child Left Behind’s central promise to provide an 

equal education for all American children. 

At its core, No Child Left Behind is a civil rights law. By holding schools accountable for the education of all children, the law seeks to close the academic achievement gap between white students and minority students. That achievement gap—

which is really an opportunity gap—has stubbornly persisted for generations. 

5

To prove that the achievement gap is closing, the law requires the states to break 

down annual test results by subgroups, such as income and race. By disaggregating 

the data in this way, a school or school district’s overall academic performance cannot obscure problems if specific groups of its students are struggling. 

When poor and minority children are not achieving proficiency along with their 

peers, states must provide remedies targeted to the schools those students attend. 

The law’s unyielding demands have raised expectations—and, in many places, 

achievement. 

That is why it is all the more troubling to learn that some states appear to be 

circumventing the primary goal of the law and exploiting a legal loophole in order 

to exclude from accountability measures the scores of children from racial and ethnic minority groups and with disabilities. 

In a recent investigation, the Associated Press found that the test scores of nearly 

two million children are not being counted under the law’s required racial categories. 

The test scores of nearly half of all of the Native American children in the United 

States are being excluded from their schools’ subgroup data. So are the scores of 

one-third of all Asian children in the U.S.—including all 65,000 Asian children who 

live in the state of Texas. And so are the scores of about 10 percent of black and 

Hispanic children nationwide. 

Overall, the test scores of black, Hispanic, Asian, and Native American children 

are seven times more likely to be excluded from subgroup data than are the test 

scores of white children. 

It is wrong for the states to exclude these children’s scores, and it is wrong for 

the Department of Education to allow this practice. This practice undermines No 

Child Left Behind as a force for the advancement of civil rights. 

No Child Left Behind’s philosophical roots go back to the Supreme Court’s 1954 

Brown vs. Board of Education decision. The reason we needed No Child Left Behind 

in the first place was that, five decades after Brown, our country still fails to offer 

poor and minority children the same educational opportunities as their peers. 

Poor and minority children are still much more often assigned to less-challenging 

classes and less-qualified teachers than are higher-income and white students. 

This opportunity gap—or lack of access to an equal education—affects academic 

achievement: seventy-four percent of white fourth graders read well—nearly twice 

the rate of black fourth graders. Latino and Native American fourth graders fare 

only slightly better. 

More than half a century after this nation committed itself to educational equality, fewer than half of all minority children can read proficiently. It was this twoclass education system that No Child Left Behind was intended to put an end to, 

once and for all. 

I am looking forward to hearing Deputy Secretary Simon’s testimony. In April, 

after the Associated Press investigation was published, 15 committee members 

wrote to Secretary Spellings and asked for the Department’s immediate attention 

to this issue. Unfortunately, we are still waiting for a response. I hope Deputy Secretary Simon is able to provide one. 

I also look forward to hearing from all of our witnesses about what can be done 

through implementation and enforcement of this provision to ensure that the true 

meaning and spirit of No Child Left Behind is honored. 

Thank you. 

Chairman MCKEON. Thank you. 

We have a distinguished panel of witnesses here today, and I will 

begin by welcoming them and introducing them. 

First, we will hear from Deputy Secretary Ray Simon who has 

served in the position of United States Deputy Secretary of Education since May 26, 2005. As Deputy Secretary, he plays a pivotal 

role in overseeing and managing the development of policies, recommendations and initiatives that help achieve President Bush’s 

education priorities, especially the No Child Left Behind implementation. Deputy Secretary Simon previously served as Assistant Secretary For Elementary and Secondary Education at the U.S. Department of Education. Prior to that he was Chief State School Officer for Arkansas for 6 years. He also served as superintendent of 

the Conway, Arkansas, School District from 1991 to 1997. He has 

6

been involved in education since 1966 when he began his career as 

a math teacher at North Little Rock High School. 

Then we will hear from Dr. Ronald A. Peiffer who is Deputy 

State Superintendent for the Maryland State Department of Education. Dr. Peiffer has provided leadership for policy development 

and communications for the Maryland Department of Education 

over the past decade. He has served as an educator for more than 

three decades by working as a teacher and a local school system 

administrator in Maryland with experience in developing local curriculum and assessment policies. Dr. Peiffer has provided leadership and helped develop policy for various aspects of the State’s 

school accountability system since he joined the State Department 

in 1987. He also oversees strategic planning, policy development 

and communication efforts that reach educators, parents, the business community and the public. 

Next will be Dr. Cynthia Kuhlman, principal of Centennial Place 

Elementary School. Dr. Kuhlman has been an educator in the Atlanta Public School System for the past 28 years. During that time, 

she has had responsibilities in the areas of teaching, supervision 

and administration across the divisions of instruction, human resource services and finance. She is also a college instructor, a coauthor, a presenter at national conventions and a recipient of numerous awards and fellowships. 

Finally, we will hear from Mr. John C. Brittain. Brittain? 

Mr. BRITTAIN. Brittain. 

Chairman MCKEON. Brittain. The chief counsel and senior deputy director of Lawyers’ Committee or Civil Rights Under Law, a 

position he has held since March of 2005. He has a background of 

35 years in the legal profession, in the past 28 years in legal education with a substantial experience in public interest litigation. 

After several years of private practice specializing in civil rights 

law, Mr. Brittain joined the faculty—Brittain. Brittain? 

Mr. BRITTAIN. Yes, Brittain. Brittain. 

Chairman MCKEON. Brittain. My family came from there. I 

should be able to say it. 

Joined the faculty at the University of Connecticut Law School 

where he specialized in international and domestic human rights. 

After 20 years of teaching at the University of Connecticut, Mr. 

Britain joined the faculty at Texas Southern University’s Thurgood 

Marshall School of Law where he also served as dean for several 

years. 

Very distinguished panel. I would like to remind you that, when 

you begin, you will see a green light. When your time is running 

out, you will see a yellow light. When your time has run out, you 

will see a red light. 

Secretary Simon. 

STATEMENT OF HON. RAYMOND SIMON, DEPUTY SECRETARY 

OF EDUCATION, U.S. DEPARTMENT OF EDUCATION 

Mr. SIMON. Good morning, Chairman McKeon, Congressman Miller and members of the Committee. Thank you for inviting me 

today to discuss No Child Left Behind and the State accountability 

systems on which it relies. We start off in agreement. We agree 

with the chairman that the law has been a positive step forward 

7

for students, teachers, parents and taxpayers. We agree with Congressman Miller that the law is making a difference. I hope my testimony will be useful as you consider its reauthorization. You deserve to know whether the No Child Left Behind Act is working as 

intended, and I am here to report that it is. 

Across the country, test scores in reading and math in the early 

grades are rising, and the achievement gap is finally beginning to 

close. Students once left behind, I am pleased to say, are now leading the way, making some of the fastest progress. We know this because No Child Left Behind measures the academic performance of 

all students through testing, and we know it because the law 

breaks down these results by students’ subgroup, African-American, Hispanic, students with disabilities, the economically disadvantaged, limited English proficient and more. 

This disaggregation of data, as it is known, is at the heart of law. 

It shines a bright light of accountability on all schools, for all parents and taxpayers to see, and it allows teachers to catch students 

before they fall behind to see where we are today. It is important 

to know where we came from. Prior to the law’s passage, schools 

were not held accountable for the subgroups, only a handful were 

disaggregating data for accountability purposes. Reading, language 

arts and math assessments were only required three times in a 

student’s entire K-12 education, and some States did not participate in a national assessment of educational progress. 

All that has changed. Today, parents know more, teachers know 

more, Congress knows more, and the U.S. Department of Education 

knows more. Every State and the District of Columbia has a school 

accountability plan, reading and math assessments and data broken down by subgroup. We are light years ahead of where we were 

5 years ago. This data is helpful in determining whether we are 

making adequate yearly progress toward our primary mission of all 

students and grade levels in reading and math by 2014. This effort 

depends on valid and reliable accountability systems that accurately reflect student performance while protecting student privacy. 

The No Child Left Behind Act allows space to set a minimum 

number in defining a student subgroup called the N size. Congress 

recognized the need to ensure accuracy and avoid distortions when, 

to quote the law, the number of students in a category is insufficient to yield statistically reliable information. This numerical floor 

varies from State to State. Most States use an N size of about 30 

to 40 students per school. Taken together, about 25 million more 

students are currently accounted for, a huge increase over preNCLB levels. 

But the question naturally arises, due to N size alone, are there 

some students being left behind? The answer is, no, even when, 

say, only four Hispanic students are enrolled in a school, those students’ test scores may, depending on the student, be accounted in 

a second, third or fourth subgroup, such as limited English proficient or economically disadvantaged, that exceeds the minimum N 

size. These scores are also counted toward the school district’s performance in that subgroup. 

Finally, and most importantly, in schools such as Frankford Elementary in Delaware and Centennial Place Elementary, represented by Principal Kuhlman with us today, their scores are reVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
8

viewed individually by teachers. These teachers and those in thousands of schools across the country that have truly adopted the 

mission of No Child Left Behind use test results to guide instruction and use their individual and collective creativity to focus with 

laser-like precision to tap the strengths and identify the weaknesses of each child. Thus, the law, with built-in redundancies, 

partnering with creative teachers enable us to get as close to 100 

percent accountability as we possibly can. 

It is a delicate balancing act to develop a State accountability 

system that is both valid and reliable or, to put another way, fair 

and accurate. That is why we have taken a firm stance against 

calls to increase N size minimums, approving only one State’s request so far this year. We want to ensure children are counted in 

every possible way. Our goal is to work closely with States to maximize the inclusion of students in all subgroups while maintaining 

public confidence and accountability. 

To this end, the Department is planning to host a National Technical Assistance Conference later this year for State assessment 

and accountability directors in concert with our assessment and accountability comprehensive center. With full testing under NCLB 

now underway, we will work with States to acquire new impact 

data on school and student inclusion rates and discuss with them 

a process for justifying how their specific N size is necessary for 

valid and reliable results. In the meantime, we will continue to follow the core principles of No Child Left Behind as we help States 

leverage the law into approved academic performance. 

And I know I speak for the Secretary when I say that we look 

forward to collaborating with Congress as well. Thank you and I 

will be happy to answer questions at the appropriate time and also 

to inform you that the Secretary’s response to the letter that Congressman Miller referenced will be coming to you this afternoon. 

[The prepared statement of Mr. Simon follows:]

Prepared Statement of Hon. Raymond Simon, Deputy Secretary of 

Education, U.S. Department of Education 

Good morning. Thank you for inviting me here today to discuss the State accountability systems designed for No Child Left Behind and, in particular, our efforts to 

work with the States to develop valid and reliable methods of measuring achievement and disaggregating achievement data by groups of students. 

I want to begin today by saying unequivocally that increasing accountability for 

students at all levels—in the school, the school district, and the State—is at the core 

of President Bush’s No Child Left Behind reforms. In fact, NCLB was designed to 

shine a light on those students who have so often been left behind in our Nation’s 

schools: African-American and Hispanic students, students with disabilities, students with limited English proficiency (LEP), and economically disadvantaged students. NCLB requires that these students be tested annually, that their scores be 

publicly reported, and that schools, districts, and States be held accountable for 

their academic performance. This is the only way to close achievement gaps between 

minority students and their peers and ensure that all students read and do math 

on grade level by 2014. 

State accountability plans under NCLB reflect these goals, and use student assessment data in reading and mathematics to determine whether each district and 

school is making adequate yearly progress (AYP) toward the statutory requirement 

of 100 percent grade-level proficiency by 2014. A fundamental component of AYP is 

looking at assessment data disaggregated by various subgroups based on race, ethnicity, poverty, disability, and limited English proficiency. A school makes AYP only 

if each subgroup—not just the overall student population—meets annual proficiency 

objectives. Before the passage of NCLB, only two States used disaggregated data to 

determine school performance under their accountability systems. And while we 

9

share the concern of Members of this Committee about the exclusion of small minority subgroups from AYP decisions, it is worth noting that thanks to NCLB, more 

than 9 million minority students, or 85 percent of minority students in the tested 

grades, are now included in school-level accountability determinations. 

At the same time, if we want to accelerate the progress of No Child Left Behind—

as we must to meet the law’s proficiency goals—it is essential to work with States 

to raise that percentage even higher by maximizing the inclusion of minority student subgroups. This effort will be the focus of my testimony today. 

The addition of subgroup accountability to State accountability systems under 

NCLB represented a major breakthrough for our education system, but the use of 

disaggregated data to measure AYP brought its own challenges. Many of you are 

familiar with this issue, but the amount of public misunderstanding is great enough 

that I’d like to briefly explain the basics. 

The Use and Impact of Minimum Group Sizes, or N–Sizes 

In holding schools accountable for the performance of various student subgroups, 

it is important to design State accountability systems that reliably identify schools 

as not making AYP. Reliability in this case means minimizing the probability of inaccurately identifying a school as missing AYP or in need of improvement. Subgroup 

accountability complicates this task because the achievement of small groups of students can vary considerably from year to year, even when curricula and instruction 

are identical, because of sampling error associated with testing different groups of 

students. Congress recognized this problem when it drafted NCLB, and thus required AYP decisions to include specified subgroups except when ‘‘the number of 

students in a category is insufficient to yield statistically reliable information.’’

States have responded to this requirement by setting minimum group sizes, or nsizes, to determine how many students of a particular population must be enrolled 

in tested grades in a school for the assessment scores of those students, taken together, to be a reliable basis for making judgments about how well that population 

is performing academically. These minimum n-sizes vary considerably from State to 

State, and currently range from 5 to 52, with most States using an n-size of 30 or 

40 students. In a large State with a diverse population of students, subgroups in 

most schools may be large enough to permit a larger n-size, while in a smaller State 

with many rural schools or sparse and homogenous populations, even a small n-size 

may result in the exclusion of most subgroups from AYP determinations. 

It is important to understand that students are included in every group to which 

they belong. For example, a Hispanic student who is from a low-income family and 

is an English language learner would be included in four separate subgroups: the 

‘‘all school,’’ Hispanic, economically disadvantaged, and limited English proficient 

groups. The potential for counting this student’s achievement four separate times 

for AYP purposes reflects an intended redundancy in NCLB accountability systems 

that now permits relatively few students to be left behind in our education system. 

Thus, even if there are too few Hispanics in this student’s school to meet the minimum group size for Hispanics, but the number of economically disadvantaged students exceeds the n-size, her assessment scores would be counted in the economically disadvantaged subgroup for accountability purposes. 

In addition, if there are not enough students in a particular subgroup at the 

school level to meet n-size requirements, the scores of these students are aggregated 

to the district level, where subgroup accountability also is an essential part of AYP 

determinations. For example, while there may be only a handful of African-American students in individual schools across a district—not enough to permit reliable 

measurement of school performance—aggregation of these students’ scores at the 

district level will provide a clear picture of the district’s performance in educating 

these students. 

Aggregation of subgroup scores to the district level is one way the statute deals 

with the challenging goal of ensuring both validity and reliability in State accountability systems. A valid system, which provides a complete picture of a school’s performance by including all subgroups, requires a very small n-size. On the other 

hand, a reliable system, which correctly classifies schools as making or missing 

AYP, requires a very large n-size. Two researchers who looked at this issue, Richard 

K. Hill and Charles A. DePascale of the National Center for the Improvement of 

Educational Assessment, concluded that while States should pick a small n-size, say 

10 students, to ensure validity, ‘‘it would be justifiable for a State to select a minimum N of 300’’ to ensure reliability. 

Education’s Decision-Making on N–Size Levels 

Clearly, setting n-size limits involves a careful balancing act, given the very wide 

range of possible options suggested by available research on the subject. As noted 

10

earlier, the Department has approved a range of State approaches, with the most 

commonly used n-size falling between 30 and 40 students. Many rural States tend 

to use a smaller n-size to account for their small schools. For example, North Dakota has no minimum subgroup size and Maine has an n-size of 20. Some States, 

such as California, Georgia, and Washington, combine a flat number and a percentage of a school population as their minimum group sizes. 

When approving State requests to modify n-sizes, the Department looks at all the 

factors involved in AYP determinations, including the average size and diversity of 

the State’s schools. States must provide data on the estimated impact of the proposed change, and the Department examines the effect of the change on the number 

of schools that still have subgroups included in the AYP calculation. We are taking 

a hard look at these requests this year. Most requests are for larger minimum nsizes, but we also are seeing several States move toward greater inclusion by proposing to eliminate higher group sizes for students with disabilities and limited 

English proficient students. 

In fact, as part of our proposed regulations providing greater flexibility to States 

in measuring accountability for students with disabilities, States will no longer be 

permitted to establish different group sizes for separate subgroups, including students with disabilities and limited English proficient students. We believe that 

States now have sufficient flexibility in measuring the achievement of these subgroups that different group sizes are no longer justified. 

The Department also is taking a harder line on requests for larger n-sizes this 

year because these requests generally do not make sense at the current stage of 

NCLB implementation. States now are testing students in each of grades 3-8, which 

naturally improves the validity and reliability of decisions about school effectiveness 

by increasing the number of students tested and thus increasing the number of students in each subgroup. While we continue to review data and take into account the 

precedent of previous decisions, we increasingly are taking the position that an increase in minimum group size—i.e., including fewer students in subgroup accountability—does not contribute to universal proficiency, nor does it put kids first. 

Nevertheless, larger n-sizes may be appropriate in the overall context of a State’s 

accountability system. Last year, for example, the State of Florida requested a 

change in n-size from 30 students for all schools to a minimum of 30 students or 

a figure equal to 15 percent of enrollment, with a cap of 100 students. This means 

that for a school enrolling 400 students, the n-size would be 15 percent of 400, or 

60 students. But for a school enrolling 1,000 students, 15 percent would equal 150 

students, which exceeds the 100-student cap, so the minimum n-size for that school 

would be 100. 

While 100 sounds very high, it makes sense in the particular context of Florida, 

and, thus, for several reasons, the Department approved Florida’s request. First, 

with some of the largest and most diverse schools in the Nation, many Florida 

schools have subgroups larger than 100 students. Second, because Florida bases its 

subgroup counts on all students in the school, and not just students in the tested 

grades, more schools have subgroups that meet the 100-student limit than would 

be the case in other States. And third, Florida does not use any other statistical 

adjustments to determine AYP. 

As a result of these factors, data submitted by Florida showed that the percentage 

of schools accountable for minority subgroups remained high, and higher than in 

many States with lower n-sizes. At the same time, these factors specific to Florida 

suggest that an n-size of 100 would not be appropriate for other States that have 

a different mix of schools and a different approach to calculating AYP. 

Ensuring That Accountability Systems Are Valid and Reliable 

We knew, of course, that statistical tools such as minimum group sizes could have 

the effect of moving accountability from the school to the district level for some minority students, particularly in small schools. We also know that short of instituting 

an n-size of ‘‘one student,’’ there will always be some students who are counted for 

AYP purposes only in the ‘‘all student’’ subgroup. Nevertheless, last April’s Associated Press analysis of minority group exclusion reinforced our determination to 

more rigorously examine the impact of n-size limitations and do a better job of 

working with States to ensure the maximum possible inclusion of minority subgroups in school-level accountability decisions. 

I have already noted our reluctance to approve requests for larger n-sizes over the 

past year. This policy reflects a larger shift toward tightening up our oversight of 

NCLB accountability provisions as we approach full implementation of the law. We 

are giving greater scrutiny to State requests for changes to their accountability 

plans, including changes to minimum n-sizes, and we are strengthening our monitoring of public school choice and supplemental educational services options. To give 

11

one example, now that States have expanded assessments to cover all the grades 

required by NCLB, and thus are testing many more students, it is fair to examine 

more closely the impact of n-size limitations and other statistical tools on the inclusion of minority students in NCLB accountability determinations. As has been the 

case since the President signed NCLB into law, our goal is to work with States to 

maximize the inclusion of students in all subgroups while maintaining or increasing 

public confidence in State accountability efforts. 

In addition, we will be taking steps over the coming months to draw on all available expertise and research to examine how States can improve the validity of their 

accountability systems through maximizing student inclusion. 

As one example of this effort, the Department is planning, in concert with our Assessment and Accountability Comprehensive Center, to host a technical assistance 

conference later this year to help States improve their systems for ensuring the validity and reliability of their accountability decisions. This conference will provide 

an opportunity to examine more closely the impact of the wide range of statistical 

tools used by States on the overall effectiveness of their accountability systems. 

I am hopeful that we will be able to draw on the lessons learned from the planned 

conference, as well as other related activities, to provide technical assistance to this 

Committee as it prepares to reauthorize the Elementary and Secondary Education 

Act of 1965. I expect the Committee will face many of the same challenges during 

reauthorization that the Department and the States have faced in finding the right 

balance of flexibility and accountability consistent with the core principles of No 

Child Left Behind, and I know I speak for the Secretary when I say that we look 

forward to working with you on this task. 

Thank you, and I will be happy to answer any questions. 

Chairman MCKEON. This afternoon did you say? We will get the 

letter this afternoon? 

Mr. SIMON. Yes. 

Chairman MCKEON. Thank you very much. That is great. 

Dr. Peiffer. 

STATEMENT OF RONALD A. PEIFFER, DEPUTY STATE SUPERINTENDENT, MARYLAND STATE DEPARTMENT OF EDUCATION 

Mr. PEIFFER. Good morning, Mr. Chairman, Congressman Miller, 

and members of the Committee. I appreciate the opportunity to be 

here representing Maryland in this very important discussion. 

Disaggregation of data is something that has been very important in Maryland’s accountability system well before No Child Left 

Behind. In 1989, we had a Governor’s commission that began an 

accountability system called Maryland School Performance Program. And by 1993, we were reporting on a regular basis the 

disaggregation by race, subgroup, special services subgroups and so 

on, including gender. We have used that information for an accountability system as we identified low-performing schools beginning in 1994. And we have consistently done that. 

However, under our old accountability system, we generally 

looked at schools on the average. We looked at the average performance, and we reported the disaggregated data, and we used the 

disaggregated data to inform the decision about low-performing 

schools when we had to intervene. However, when No Child Left 

Behind came along, we were at a point where we needed to transition to something that was more focused and more surgical. And 

as a consequence, we moved with a Committee of about 200 Marylanders that we brought in, using national experts, to look at how 

we might do that, and we have developed what we think is a very 

good system. 

12

Our accountability system is based on the same categories that 

are provided in the Federal law. However, our N size, our minimum group size, if you will, is five. And we believe ours is probably the smallest in the country. And what that does is it provides, 

when you report, you ensure that every student appears that will 

not be—will not be capable of being identified. This is a statistical 

tool—a statistical measure I guess that has been in place for a 

number of years. It is not really a new measure, No. 5. However, 

in the area of accountability, it becomes a little more complicated 

because you need to make sure, as Secretary Simon said, you need 

to make sure that the number is statistically reliable and does not 

reveal students’ names and identities. So we have used a statistical 

tool called the confidence interval, which is not unlike the plus or 

minus five points that you see recorded about poll results. And the 

size of the margin of error, if you will, around the results has a lot 

to do with the size of the group. A small group gets a large margin 

of error. A large group gets a small margin of error. As a consequence, by applying that to progress measures, determination for 

schools around the country, right now in the 2005 Education Week, 

I think you will find that Maryland had an AYP, about 75 percent 

of our schools making AYP. That is about the national average. 

By moving to an N-5, it did not unfairly disadvantage our 

schools. What we have also done is to use the disaggregated data 

as a part of our new funding distribution to local school systems. 

By knowing the high-risk students you have in school systems, 

school systems get additional dollars. Then, annually, they have to 

tell us in the master planning process how they are spending those 

dollars to ensure that they are targeted toward the students and 

moving away from the typical multi-funding stream approach to 

funding local school systems. 

Our State dollars combined together with the Federal dollars 

allow local school systems to be very strategic about the way they 

are spending their dollars. We believe that this is helping. In Maryland we have had a lot of cooperation from our local school systems, and our schools in working with this had a tremendous 

amount of cooperation from the U.S. Department of Education in 

making sure that we could apply this in a good and fair way. 

Over the years and in most recent years, we have been able to 

say that some schools have paid very close attention to the 

disaggregated data and made significant changes. North Glen Elementary School, for example, in Anne Arundel County was, I believe, recently visited by the President. Their third graders in reading, African-American students, were performing at approximately 

32 percent proficiently level. That is up to 93.8 percent in this last 

test. 

We have other schools that are showing similar kinds of gains. 

We have other schools for which we have a lot of work ahead. We 

believe it is the right thing to do. We believe No Child Left Behind 

has really helped us go far beyond what we did that we thought 

was groundbreaking in the 1990’s into an era where I think we are 

more serving the needs of each and every student. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Peiffer follows:]

13

Prepared Statement of Ronald A. Peiffer, Ph.D., Deputy State Superintendent, Office of Academic Policy, Maryland State Department of Education 

Introduction 

Good afternoon Mr. Chairman, Congressman Miller, Congressman Van Hollen, 

and members of the committee. Thank you for the opportunity to talk with you 

today about the importance of subgroup disaggregation and the minimum group size 

of five that Maryland uses in its system of reporting and accountability. 

As the Deputy State Superintendent of Academic Policy at the Maryland State 

Department of Education, I work with the Department staff and local school systems to develop policy in numerous areas, chief among them Maryland’s system of 

school accountability. With State Superintendent Grasmick’s strong and able leadership, Maryland incorporated No Child Left Behind (NCLB) into its ongoing accountability system, which has been in place since 1990. 

Historical Perspective 

For some states, the ideas of school accountability and data-reporting by race or 

other categories were not common before NCLB. But in Maryland, we have a long 

history of both that dates back to 1989, when the Governor’s Commission on School 

Performance issued a report calling upon the Maryland State Department of Education to develop a comprehensive public accountability system for schools, systems, 

and the state. The report issued recommendations based on the egalitarian premise 

that all children can learn and have the right to attend schools in which they will 

succeed, no matter where they live. All schools, regardless of the demographic characteristics of their students, were to be held accountable for their students’ educational achievement, and all children were to be given a real opportunity to learn 

equally rigorous content. 

This commitment to equal academic opportunities for ALL students became the 

premise and promise of Maryland’s school-reform efforts. In response to the Commission’s report, the Maryland State Board of Education established the Maryland 

School Performance Program, the first step in our action plan for revitalizing public 

education. 

Because we were committed to improving education for every child, we realized 

that we could not just report average achievement data. Reporting only average performance can mask problems among certain groups of students. The only way to understand whether a school is serving all its students well is to report achievement 

data by the student subgroups. If a school is performing at a satisfactory level overall but terribly among certain groups of students, then we want to know that, so 

we can begin addressing the problem. 

Thus, since the early 1990s, Maryland has reported its achievement data for all 

students and for subgroups of students, such as racial groups, students receiving 

special education services, and students eligible for Free or Reduced-Price meals, 

which is a proxy for poverty. 

Also during this time, Maryland decided upon a minimum group size of five for 

reporting student results. The minimum group size is admittedly small, but we believe it is essential in ensuring that students are ‘‘counted’’ and don’t disappear from 

the system. We did not report results from groups of less than five to ensure that 

the individual student identifiers could not be devised from the publicly reported 

school-level results. This is consistent with generally applied statistical rules. Because Maryland at that time did not tie any sanctions directly to subgroup performance, there were no particular concerns from districts or stakeholders about the 

minimum subgroup size of five. 

Maryland and NCLB 

As you know, NCLB not only requires public reporting of subgroup performance, 

it also requires states to include subgroup performance in their Adequate Yearly 

Progress calculations, thereby holding schools responsible for improving subgroup 

achievement. This was a significant change in Maryland, as previously we were reporting for subgroups but not tying it directly to consequences. We were certainly 

shining a light on achievement gaps, and putting pressure on schools to pay more 

attention to subgroups, but we hadn’t yet taken the next step of issuing sanctions 

to schools and districts that were not improving achievement for all groups of children. 

In 2002, Maryland linked educational funding to subgroups with the Bridge to Excellence Act, which established a new formula for calculating how much money each 

school system receives from the State. Under the new formula, school systems receive additional funding for all students, plus additional funds based on the numVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
14

bers of students who receive special education services, have limited English proficiency, or qualify for free or reduced-price meals. By 2008, public schools will receive more than 1.3 billion in additional funding. 

In order to receive the funding, each of Maryland’s 24 school systems is required 

to prepare a Master Plan for approval by the State Board of Education. This Master 

Plan must document the school system’s goals and strategies for improving achievement among all groups of students, including students receiving special education 

services, students with limited English proficiency, and students who qualify for free 

and reduced-price meals, and other groups. 

In preparing Maryland’s response to NCLB, we had many discussions around 

minimum group size. As you know, the minimum group size is the size at which 

a group of students ‘‘counts’’ toward Adequate Yearly Progress. For example, a very 

high minimum group size, such as 100, would mean that schools would not be accountable for any group smaller than 100 students. In Maryland, such a scenario 

would ensure schools would never be responsible for anything other than average 

student performance. The subgroups essentially would disappear from the accountability system. 

This was not what we wanted for Maryland. Our chief concern was in identifying 

a group size that would ensure we were including all students. As I mentioned before, Maryland has a long history of reporting subgroup data. We wanted to continue our push for higher achievement for all groups of students. Therefore, we did 

not want to pick a group size that was so high that subgroups in hundreds of 

schools across the state would disappear. 

However, it was also important to us that the Adequate Yearly Progress determinations be accurate. We certainly did not want schools to be identified for significant consequences such as restructuring based on the performance of a handful of 

students if such action was not warranted. We knew that we needed to balance 

what was fair and appropriate for schools with what was the right thing to do for 

children. 

In the end, we found the balance we were looking for by keeping our minimum 

group size of five and adding a confidence interval. 

Confidence Interval 

As you know, in order to be making Adequate Yearly Progress under NCLB, 

schools and districts must meet the annual targets in reading and math. These annual targets increase each year until all students attain proficiency in 2013-2014. 

You are probably familiar with the concept of Confidence Interval as it applies 

to survey and poll results. The plus or minus margin of error that is cited along 

with poll results is analogous to our Confidence Interval. 

As it applies to NCLB and school accountability, the confidence interval is a range 

of scores around the annual target. As long as the subgroup scores at the lowest 

point in the confidence interval range, it will be considered to have met the annual 

target. For example, if a school’s annual reading goal is to have 50% of students 

at proficient, the confidence interval for a particular subgroup might be from 40% 

to 60%. As long as the subgroup’s score is in the confidence interval range, then 

the subgroup has achieved the annual goal. 

Confidence intervals protect schools from the small margin of error that is inherent in every measurement system. They do this by providing a cushion around the 

annual target. The size of the cushion varies according to the size of the group. The 

smaller the group, the larger the interval. The larger the group, the smaller the interval. As long as the group performs within the confidence interval, it will be considered to be meeting the annual target. 

Maryland’s minimum subgroup size of five is small, but it is at that point that 

the confidence interval, the cushion if you will, is at its largest. So, even though we 

are reporting and holding schools accountable for small subgroup sizes, we are giving schools some leeway in achieving the targets. 

We instituted the Confidence Interval not just because it was the right thing to 

do for schools, which it is, but because it is an appropriate thing to do statistically. 

When assessment groups are small, the performance or absence of just a few students can have a dramatic effect on the average score. The statistical help provided 

by the Confidence Interval allows us to have a good level of confidence that the decisions made about low-performing schools are fair and accurate. 

Conclusion 

By applying a Confidence Interval, Maryland has been able to maintain a small 

minimum group size of five, thus ensuring that subgroups of students are not disappearing from the accountability system. At the same time, we’re protecting 

schools from erroneous identification for sanctions due to subgroup performance. 

15

A few years ago, there was some anxiety on the part of local districts about the 

consequences of a small minimum group size. However, once implementation began 

in earnest, the districts saw the value of the small group size. They now appreciate 

being able to assure parents that students are included in the accountability system 

and that subgroup performance is not being swept under the rug. 

Thank you for the opportunity to discuss Maryland’s use of subgroup 

disaggregation, minimum group size, and Confidence Interval. I look forward to providing any additional information you may need or answering any questions you 

may have. 

Chairman MCKEON. Thank you very much. 

Dr. Kuhlman. 

STATEMENT OF CYNTHIA KUHLMAN, PH.D., PRINCIPAL, 

CENTENNIAL PLACE ELEMENTARY SCHOOL 

Dr. KUHLMAN. Good morning, Mr. McKeon, Congressman Miller. 

It is my pleasure this morning to be here to discuss the 

disaggregation of student achievement by subgroups to ensure that 

all children are learning. 

As principal of Centennial Place Elementary School in Atlanta 

Public Schools, I have been very proud of our progress in making 

sure that all children are learning at a very high level of proficiency and that we are closing achievement gaps. 

This morning I would like to talk a little bit about background 

information of our school, some of our interventions and also specific information about student achievement by subgroups. Our 

school opened in August 1998. It replaced a very low-performing 

school that had operated for years in that community and was part 

of an overall community revitalization effort. We have 520 students; 95 percent are African-American; 4 percent other minorities; 

and 1 percent white. We are a Title I school with 60 percent of our 

students receiving free or reduced lunch. 

Our school serves a wonderful new housing development that 

was funded by a HOPE VI grant. It replaced a very deplorable 

housing project, Techwood and Clark Howell Homes in midtown of 

Atlanta, and it is 40 percent public housing subsidized, 20 percent 

low income and 40 percent market rate housing. We also serve two 

shelters for homeless women and children and families, over 120 

students a year from these shelters but no more than 30 at a time 

due to the transience rate. We also serve a little home ownership 

community near Georgia Tech University, and in addition to that, 

one-third of our students come to Centennial Place by choice. 

We have a number of wonderful businesses in our community 

that also pay close attention to the progress of the school, the CocaCola Company, Sun Trust Bank, Holland & Knight law firm, Georgia Tech University, Georgia State University, with a high level of 

participation and community involvement. 

Some of our interventions: We have school uniforms. That helps 

us with the management of the wonderful economic diversity that 

we celebrate. We also have a year-round calendar. We start school 

in mid-July and end in mid-June and do 9 weeks on, 3 weeks off, 

with required remedial course work during the break periods for 

students who aren’t meeting standards and wonderful enrichment 

classes for those that are. We do an extended day program, and we 

do thematic teaching and project-based learning. 

16

We have a very exciting science-focused curriculum that keeps 

children actively engaged in learning. We also spend considerable 

time with other subjects like foreign language. All of our students 

take Spanish every day. And we have a heavy arts integration with 

the help of our partners at Georgia Tech, Georgia State, the Robert 

Ferst Center for the Arts and the Atlanta Symphony Orchestra. 

Our kids attend interactive week-long workshops with artists such 

as Chuck Davis. They have gone to the Ferst Center to play YoYo Ma’s cello. And I say all this to say that exciting learning in 

standards-based education is an important variable. 

Three years ago, in 2003-2004, we recognized that our two subgroups of black students and economically disadvantaged students 

were making exactly the level of progress that we expected, 90 percent or better proficiency. We were very disappointed, and thanks 

to No Child Left Behind reporting data by subgroups, that our students with disabilities were not achieving commensurate to the 

other students. So we took it upon ourselves to initiate a number 

of variables, including more collaboration with teachers, more focused modifications in the testing and more professional development for the teachers, to bring up that performance. And we have 

noticed an increasing closing of the gap that exists with our students who have disabilities. So we are leveling out on all playing 

fields now. 

I want to end with just one nice story about our students who 

had attended Fowler before we existed, and there was a depressing 

story that never had a Fowler student attended Georgia Tech University despite the fact that it was right at our back door. Well, 

this year, I just attended our first graduating group of students; 

our first fifth graders finished high school this year. And they were 

represented on the program and on the stage with honor society 

ribbons, high financial scholarships to colleges, straight As, grade 

point averages above 90 percent, and next year, we do anticipate 

our first student graduating from high school and attending Georgia Tech. So we have made a lot of progress, and we are appreciative to No Child Left Behind for the increased rigor that Georgia 

will implement with its new standards and for the public presentation of disaggregated data by subgroups. 

Thank you, and I look forward to answering your questions. 

[The prepared statement of Dr. Kuhlman follows:]

Prepared Statement of Cynthia Kuhlman, Ph.D., Principal, Centennial 

Place Elementary School 

Atlanta, GA, June 13, 2006.

Good morning Mr. Chairman and members of the Committee. Thank you for the 

opportunity to speak with you this morning about disaggregating student achievement by subgroups to ensure that all students are learning. It is an honor for me 

to represent our school, Centennial Place Elementary, as well as our dedicated 

stakeholders throughout our community. As principal of Centennial Place, I am very 

proud of our progress toward eliminating an achievement gap among our subgroups 

and maintaining high standards and expectations for achievement by all students. 

In my allocated time, I hope to provide for you a description of our school and community, some important background information about the changes that have taken 

place over the past ten years and a general analysis of our student achievement results. I will conclude with an anecdotal comment about the longitudinal progress 

that our students have experienced over the eight years of our existence as the new 

Centennial Place Elementary School. 

17

School and Community Information 

Centennial Place Elementary School is a child-centered, community-based themed 

school that focuses on Science, Mathematics, and Technology. The school draws its 

student population from the Centennial Place neighborhood and surrounding communities including two shelters. The students bring a multiplicity of diversities in 

cultures, languages, socioeconomic status and customs. 

The school’s mission is to build a learning culture that provides a positive, personal educational experience for each child. We actively engage a community of 

learners in science, mathematics, and technology so that they become problem solvers, critical thinkers, effective communicators and life-long learners. Visitors to Centennial see a school where children are self-directed, engaged in spontaneous learning, and facilitators in project-based/hands-on learning activities. In addition, children are becoming conscientious protectors of the environment, becoming fluent in 

a second language, participating in rich opportunities for arts integration and becoming proficient in the sensible use of technology. 

Our teaching staff accepts the decision-making responsibilities involved in molding the minds of the future. Visitors see teachers who are empowered to make decisions about implementing an all inclusive, spiraling curriculum that fosters higher 

order critical thinking skills, best practices, and inquiry learning. Such empowerment promotes a curriculum that improves daily decision-making, collaboration, professional development, and differentiated instruction to meet individualized student 

needs. 

Centennial Place has a strong community and parental support system where active involvement is encouraged and expected. The school’s governance model offers 

families and the community a voice and an opportunity to participate in the decision-making process at the school. Our visitors see a school where parents are actively engaged in meaningful support of the instructional program. Parents participate in parent workshops, action learning and on-going research and assessment. 

Most importantly, parents adhere to the contractual agreement that is crucial to 

student success. 

In the Centennial Place School community, successful business corporations and 

higher education institutions share our vision for a ’break-the-mold school.’’ They 

have committed to supporting the curriculum by volunteering, tutoring, and mentoring. Our community stakeholders include: the Coca-Cola Company, the Georgia 

Institute of Technology, Sun Trust Bank, Georgia Natural Gas Company, Publix Supermarket, the YMCA, the Atlanta Housing Authority, the Integral Group (Community Collaborative Team), Georgia State University, the Atlanta Symphony, the 

Georgia Protection Division, the Georgia Aquarium, and the law firm of Holland & 

Knight. These partners are committed to the belief that the school exists to serve 

the child and that each child will be a successful learner. 

Background Information 

The Learning Village idea for Centennial Place was conceived by a coalition of Atlanta Public Schools educators, university leaders, and community business stakeholders. This coalition was committed to creating an urban-community school that 

could intervene by resolving contradictions, shattering barriers, and providing a 

world-class education for urban youth. The Learning Village concept is grounded in 

a commitment of inclusion and opportunity for an entire generation of children. The 

ultimate goal of this unification is to create a pipeline beginning at Centennial to 

feeder middle school (Inman) and high school (Grady) and ultimately ending with 

our students enrolling into the Georgia Institute of Technology. 

The birth of Centennial Place Elementary was a result of teachers at the then 

Fowler Elementary School and community leaders realizing that the school would 

need to make changes in order to meet the needs of the transforming community. 

Fowler Elementary school served the then Techwood/Clark Howell community, 

which was one of the oldest public housing projects built under Franklin Roosevelt. 

For many years the community was an impoverished area plagued with drugs and 

gang activity was rampant. Fowler was considered the ‘‘safe haven’’ for children in 

grades K-5. It provided students with standards-based learning. Parental involvement was minimal. Those parents who did become involved were dedicated to making a difference but their impact was not significant enough to cause change. The 

administrators and teachers that worked at Fowler were committed to changing the 

perception of student failure in this low-economical setting. They worked together 

to implement several initiatives that guided instruction and the governance of the 

school. Some of these were the Special Instructional Assistance (SIA) program which 

was a theme based program that offered hands-on instruction in grades K-2 only, 

the Project Impact program which was a systematic approach to teaching matheVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
18

matics, the Science Initiative in grades four and five, and the Writing to Read program in grades Kindergarten and first. 

Several businesses in the area recognized the need to support the community elementary school because of the challenges students from impoverished areas face. 

Some of these partnerships included: The Coca Cola Company, the Georgia Institute 

of Technology, and Georgia State University. These partnerships offered resources 

as well as a mentoring program for students. Although Fowler seemed to have all 

the right ingredients, the test scores as well as the perception of the faculty, staff, 

parents and the community stakeholders indicated that there was still a need for 

a more systematic approach to ensure the success of all students throughout the 

school. Changes were occurring not only in the community but also in education and 

the school and the community began to set the foundation for meeting the needs 

of students in the changing global world. 

On June 30, 1995, Atlanta Public School Board members hosted a luncheon in the 

President’s Conference Room at Georgia Tech with Dr. Ben Canada, Superintendent 

for Atlanta Public Schools (APS). Representatives from the Center for Education Integrating Science, Mathematics, and Computing (CEISMC) and members from the 

Georgia Institute of Technology’s (Georgia Tech) office for Minority Education Development (OMED) met to discuss the opportunities for developing a state-of-the-art 

elementary school to replace the current Fowler Elementary School. This school was 

to be built on a new location in the community on Luckie Street between a new 

YMCA building and the Carnegie Library, a Historic Registry edifice. 

The proposed new Centennial Place community would involve redevelopment of 

the devastated urban area with Hope VI federal funds, a federal housing program 

begun under President Ronald Reagan with the aim of redeveloping blighted public 

housing projects and helping residents become homeowners. Centennial Place was 

planned as an innovative inner-city concept that includes individuals and families 

living seamlessly in subsidized housing along with middle income families in nonsubsidized housing. The community includes a mixture of town homes and apartment homes both rental and ownership, 40 percent of which are reserved for public 

housing clients, 20 percent for low-income residents, and the rest designated for atmarket prices. Central to the success of this concept would be the school serving 

as the catalyst that would attract residents, especially families, to the community. 

Approximately $1 billion was invested in the five-mile radius of the new and old 

school. Approximately $100 million was to be invested in the development of this 

mixed income community composed of the new school, YMCA, a supermarket, new 

housing, and the rest of the community. 

Student Achievement 

Since opening in August of 1998, we have seen continual improvement with our 

test scores. The percentage of students not meeting expectations has decreased. We 

believe the targeted assistance by tutors and ‘‘real world contexts’’ have positively 

impacted our overall scores. We have not only met our Superintendent’s targets five 

years but have also met AYP six consecutive years earning us the distinction as a 

Title I Distinguished School. During the 2003-2004, we received an award from Education Trust Foundation for ‘‘Dispelling the Myth’’ with student achievement and 

economic diversity and continue to be recognized as a model school through The 

Achievement Alliance. 

The school sets forth clear and high expectations for student learning. They address academics as well as behaviors and habits of mind. The entire community 

works relentlessly to ensure that all students meet these expectations and succeed 

at the highest possible level, and that no student falls through the cracks. For example, we recognized the need to provide periodic reviews for instruction on a 

timelier basis and a year-round calendar with quarterly remediation and enrichment opportunities was adopted. In addition to our year-round calendar, we have 

implemented an extended day program to increase the instructional day, hence, increasing time-on-task by focusing on specific skills. Because of the diversity of socioeconomic backgrounds of students at Centennial Place, all stakeholders voted to accept our school uniform initiative. We continually monitor progress to identify and 

assist those students in need of special help. Our process includes rigorous data 

analysis; the creation of individualized student profiles with attendance, grades, 

standardized scores, and interventions; implementing student instructional plans 

based on profiles; and utilizing ongoing authentic assessments benchmarking 

progress. 

Students who qualify for the Program for Exceptional Children (PEC) are served 

in an interrelated model at Centennial. The In-School Team (IST) develops an individualized education plan (IEP) for each student designating the amount of pull-out 

time and/or collaborative services necessary. The plan is developed to target each 

19

student’s needs as well as differentiating instruction for the various learning styles. 

The interrelated and classroom teacher identify the objectives from the new Georgia 

Performance Standards that most closely align with the Georgia Criterion Reference 

Competency Test (CRCT) to aid in developing individualized instructional plans for 

the interrelated classroom. Some plans call for the interrelated teacher to provide 

services through consultation with classroom teacher concerning the individual student’s needs. The classroom teacher and the interrelated teacher collaborate to create benchmarks and develop assessment strategies to provide interventions for the 

student to meet grade level standards. The IEP is monitored quarterly as determined by the teacher and yearly as determined by the IST to make sure that the 

testing addendum for student is amended if appropriate. In addition, the School 

Testing Coordinator remains abreast of allowable accommodations from the state. 

Examples of strategies to improve reading/language arts may include but are not 

limited to: concept mapping for comprehension, CORE strategies with phonics and 

decoding skills, and one-on-one instruction. The interrelated teacher and administrators participate in school visits to monitor high achieving schools where PEC has 

been successful. 

Summary 

At Centennial Place, we have welcomed the opportunity to comply with The No 

Child Left Behind Act. Prior to this important legislation, Centennial Place stakeholders developed a vision and mission that sought to dispel any myths that poor 

and minority students could not achieve commensurate with other young Americans. At Centennial Place, we have two subgroups mandated by NCLB—Black Students and Economically Disadvantaged Students. With these subgroups, we have 

not only narrowed the achievement gap, but we have also maintained a consistently 

high level of performance among all groups of students. In 2004-2005, all subgroups 

maintained a 90 percent or higher proficiency level on all tests. 

Our subgroup of Students with Disabilities, while large enough to report results, 

is not large enough to legally require a performance standard for Adequate Yearly 

Progress. When we noticed in 2003-2004, that we had a significant achievement gap 

with our students with disabilities performing far below their non-disabled peers, 

we were determined to make significant changes and improvements. The changes 

included increased collaboration among regular and special education teachers and 

parents, allowable modifications in test administration included in the IEP, narrowing the scope and increasing the depth of instruction for specific standards and 

tracking individual student progress very carefully. These modifications were extremely effective in helping us achieve our desired outcomes. During the 2004-2005 

school year, we nearly doubled the percentage of students with disabilities who were 

proficient in all subjects. 

Georgia’s standards are in the process of revision to be made more rigorous, which 

means making AYP will be a little more difficult. We support the new more rigorous 

standards and have confidence that our children and teachers are up to the challenge. 

Conclusion 

I want to conclude by again thanking you, Mr. Chairman and members of the 

committee, for allowing me to share our story with you this morning. I promised 

to conclude my presentation with an anecdotal story about our students’ longitudinal progress over the past eight years. When we first opened our school in 1998, 

we were haunted by a story that no student from Fowler had ever attended the 

Georgia Institute of Technology. The children grew up literally across the street 

from one of the most prestigious science and technology institutions in the south, 

but none had been admitted. Moreover, Fowler students were not going to any colleges or universities. Last week, I had the pleasure to attend the Grady High School 

graduation ceremonies to observe our first fifth grade class of students as they graduated from high school. Our Centennial Place students were proudly represented in 

the printed program and on the stage for distinguished honors such as scholarships 

to prestigious universities around the country, Hope Scholarships to Georgia universities, memberships in the National Honor Society, GPA’s of 90 percent or higher 

and subject area awards for straight A’s or Outstanding Distinction in the Subject 

Area. We are also anticipating the strong possibility that one of our students, who 

will graduate from high school next year, will indeed attend the Georgia Institute 

of Technology.

20

ATLANTA PUBLIC SCHOOLS: CENTENNIAL PLACE ELEMENTARY ADEQUATE YEARLY PROGRESS 

[Student data-subgroups; 100% participation rate thruout] 

Full academic year 

students w/scores Black Studentsw/disabilities 

Economically

disadvantaged 

2005–2006 Reading/Lang. Arts* ................... 222 students 205 students 26 students 119 students 

Basic/does not meet ............................. 13.1%

29 students 

13.9%

28.5 students 

34.6%

9 students 

18.5%

22 students 

Proficient/meets .................................... 61.3%

136 students 

62.4%

128 students 

55.8%

14.5 students 

64.7%

77 students 

Advanced/exceeds ................................. 25.7%

57 students 

23.7%

48.5 students 

9.6%

2.5 students 

16.8%

20 students 

Meets & exceeds ................................... 86.9%

193 students 

86.1%

176.5 students 

65.4%

17 students 

81.5%

97 students

2004–2005 Reading/Lang. Arts ..................... 209 students 198 students 23 students 127 students 

Basic/does not meet ............................. 4.3%

9 students 

4.0%

8 students 

15.2%

3.5 students 

5.5%

7 students 

Proficient/meets .................................... 47.4%

99 students 

49.7%

98.5 students 

56.5%

13 students 

53.9%

68.5 students 

Advanced/exceeds ................................. 48.3%

101 students 

46.2%

91.5 students 

28.3%

6.5 students 

40.6%

51.5 students 

Meets & exceeds ................................... 95.7%

200 students 

96.0%

190 students 

84.8%

19.5 students 

94.5%

120 students

2003–2004 Reading/Lang. Arts ..................... 223 students 212 students 17 students 134 students 

Basic/does not meet ............................. 6%

14 students 

6%

13 students 

47%

8 students 

8%

11 students 

Proficient/meets .................................... 46%

101.5 students 

47%

100 students 

38%

6.5 students 

55%

73.5 students 

Advanced/exceeds ................................. 48%

107.5 students 

47%

99 students 

15%

2.5 students 

37%

49.5 students 

Meets & exceeds ................................... 94%

209 students 

94%

199 students 

53%

9 students 

92%

123 students

2005–2006 Mathematics ............................... 222 students 205 students 26 students 119 students 

Basic/does not meet ............................. 6.3%

14 students 

6.8%

14 students 

19.2%

5 students 

7.6%

9 students 

Proficient/meets .................................... 64%

142 students 

65.9%

135 students 

69.2%

18 students 

73.1%

87 students 

Advanced/exceeds ................................. 29.7%

66 students 

27.3%

56 students 

11.5%

3 students 

19.3%

23 students 

Meets & exceeds ................................... 93.7%

208 students 

93.2%

191 students 

80.8%

21 students 

92.4%

110 students

2004–2005 Mathematics ............................... 209 students 198 students 23 students 127 students 

Basic/does not meet ............................. 9.6%

20 students 

9.6%

19 students 

13%

3 students 

10.2%

13 students 

Proficient/meets .................................... 69.9%

146 students 

72.2%

143 students 

82.6%

19 students 

72.4%

92 students 

Advanced/exceeds ................................. 20.6%

43 students 

18.2%

36 students 

4.3%

1 student 

17.3%

22 students 

Meets & exceeds ................................... 90.4%

189 students 

90.4%

179 students 

87%

20 students 

89.8%

114 students

2003–2004 Mathematics ............................... 223 students 212 students 17 students 134 students 

Basic/does not meet ............................. 11%

25 students 

12%

25 students 

59%

10 students 

16%

21 students 

Proficient/meets .................................... 63%

141 students 

64%

136 students 

41%

7 students 

67%

90 students 

Advanced/exceeds ................................. 26%

57 students 

24%

51 students 

0%

0 students 

17%

23 students 

Meets & exceeds ................................... 89%

198 students 

88%

187 students 

41%

7 students 

84%

113 students

2005–2006 Science ....................................... 222 students 205 students 26 students 119 students 

21

ATLANTA PUBLIC SCHOOLS: CENTENNIAL PLACE ELEMENTARY ADEQUATE YEARLY PROGRESS—

Continued

[Student data-subgroups; 100% participation rate thruout] 

Full academic year 

students w/scores Black Studentsw/disabilities 

Economically

disadvantaged 

Meets & exceeds ................................... 96%

213 students 

96%

196 students 

85%

22 students 

95%

113 students 

Advanced/exceeds ................................. 23%

52 students 

21%

43 students 

12%

3 students 

13%

16 students

2004–2005 Science ....................................... 209 students 198 students 23 students 127 students 

Meets & exceeds ................................... 97%

203 students 

97%

193 students 

96%

22 students 

98%

124 students 

Advanced/exceeds ................................. 25%

52 students 

22%

44 students 

17%

4 students 

19%

24 students

2003–2004 Science ....................................... 223 students 212 students 17 students 134 students 

Meets & exceeds ................................... 94%

210 students 

94%

199 students 

53%

9 students 

92%

123 students 

Advanced/exceeds ................................. 24%

54 students 

22%

47 students 

0%

0 students 

16%

21 students

2005–2006 Social Studies ............................. 222 students 205 students 26 students 119 students 

Meets & exceeds ................................... 95%

212 students 

95%

195 students 

92%

24 students 

93%

111 students 

Advanced/exceeds ................................. 23%

52 students 

22%

45 students 

8%

2 students 

13%

15 students

2004–2005 Social Studies ............................. 209 students 198 students 23 students 127 students 

Meets & exceeds ................................... 97%

203 students 

97%

193 students 

96%

22 students 

96%

122 students 

Advanced/exceeds ................................. 21%

43 students 

18%

36 students 

9%

2 students 

14%

18 students

2003–2004 Social Studies ............................. 223 students 212 students 17 students 134 students 

Meets & exceeds ................................... 95%

212 students 

95%

201 students 

65%

11 students 

93%

125 students 

Advanced/exceeds ................................. 22%

50 students 

21%

45 students 

0%

0 students 

15%

20 students 

*The GPS based CRCT for Reading & Lang. Arts in 2005–2006 is an entirely new and different test. Both the content and the performance 

standards have changed. Consequently, performance on these new tests cannot be meaningfully compared to results from previous years. Results should be regarded as a new ‘‘Baseline’’ for the new GPS based tests. 

Chairman MCKEON. Thank you. 

Mr. Brittain. 

STATEMENT OF JOHN C. BRITTAIN, CHIEF COUNSEL AND DEPUTY DIRECTOR, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW 

Mr. BRITTAIN. Good morning, Mr. Chairman, Ranking Member 

Miller, and other members of the Committee. 

Since the Lawyers’ Committee’s inception in 1963, we have advocated on behalf of children of color. The title of this hearing aptly 

describes the critical need from a civil rights perspective for school 

districts to publicly disclose data on the performance of specific 

groups of students, particularly those who have been the historic 

victims of discrimination. The Lawyers’ Committee recommends 

that the Committee provide for the continuation of the 

disaggregation of the data. In addition, to fix the N size loophole 

problem, the Committee should consider proposing legislation that 

22

continues to provide the States with discretion. However, it would 

set a maximum limit on the number of excluded students. If the 

States do exclude certain students, it should review the data on the 

excluded students to determine the level of efficiency. In all cases, 

of course, the excluded student should receive the maximum remedial measures to aid those in need of improvement and to expand 

upon their learning opportunity. 

From the perspective of advocates for educational equity and improvement, data on the performance of school districts in the aggregate and performance of groups of students in particular groups is 

so crucial to the extent of measuring the scope of inequality as well 

as the hopeful evidence that some schools are making improvements. Therefore, the civil rights legal organization, joined with the 

professional educators in promoting the transparency and the 

disaggregation of data on student achievement. 

Mr. Chair, I don’t see the countdown on my monitor. How much 

time do I have left? 

Chairman MCKEON. Two minutes. 

Mr. BRITTAIN. Thank you. No Child Left Behind, to a certain extent, has forced very difficult political choices for some States. They 

can either improve education or they can lower the bar. Unfortunately, No Child Left Behind has created a lot of unintended consequences. No Child Left Behind in some States has been interpreted to mean, no State shall look bad, in terms of their annual 

yearly progress. To comply with the goals of No Child Left Behind, 

to increase those student learning and achievement scores, some 

States could either improve education or they could lower the bar 

of success. Given sometimes the principle that a rational actor 

often tends to choose the course of least resistance, some State education authorities have opted to lower the bar or omit data to look 

good because this choice offers less resistance than improving the 

product of education in the schools. 

The N size controversy demonstrates that some States have 

taken advantage of the legal loopholes in No Child Left Behind. We 

can certainly stipulate that some States may be justified in not 

considering a small number of students’ scores, for example, where 

the subgroup is truly too small to yield statistically valid results on 

the accountability purposes. However, it is nothing short of unconscionable that such large numbers and percentages of AfricanAmerican, Latino, Native American students, as you described in 

your opening remarks, are left behind. And we will not go into detail about the 2 million students who were not counted across this 

Nation. 

So, in conclusion, when students don’t score—when students’ 

scores don’t count and their schools continue to make annual 

progress, students are denied their statutory rights and benefits 

under No Child Left Behind. If No Child Left Behind is going to 

fulfill its promise as a civil rights education program of this generation, aggressive steps must be taken by States and by the Federal Government to ensure that students who are the primary intended beneficiaries of Title I are not ignored in the end. 

I would like the privilege, Mr. Chair, to supplement my testimony with two additional documents: A memo of law—a memorandum of law that the NAACP and the Lawyers’ Committee filed 

23

in the case entitled Connecticut v. Spellings, pending in the Federal Court in Connecticut, and I would also like to introduce a set 

of news clippings regarding the pending application of the NAACP 

to intervene in that case concerning No Child Left Behind to provide a complete record of my testimony here today. 

[The prepared statement of Mr. Brittain follows:]

Prepared Statement of John C. Brittain, Chief Counsel and Senior Deputy 

Director, Lawyers’ Committee for Civil Rights Under Law 

Introduction 

The Lawyers’ Committee for Civil Rights Under Law wishes to thank the Honorable Howard P. ‘‘Buck’’ McKeon, Chairman, and the Honorable George Miller, Ranking Member, and the members of the Committee on Education and the Workforce 

for giving me the opportunity to testify today about the importance of 

‘‘Disaggregating Student Achievement by Subgroups to Ensure All Students Are 

Learning.’’

Former President John F. Kennedy started the Lawyers’ Committee over fortytwo year ago when he summoned two hundred and fifty of the top lawyers in the 

nation to provide pro bono legal assistance in civil rights cases. Our core mission 

is to ensure equality for primarily racial and ethnic minorities in education, housing, voting, employment, minority businesses, environmental justice and community 

development. 

We have a long history in litigation and public policy advocacy on behalf of children of color. I was honored to come to the Lawyers’ Committee last year as Chief 

Counsel and Deputy Director, after a thirty-seven year career in academia and public interest practice with expertise in school desegregation and educational equity. 

In addition to serving as chief counsel and deputy director for the Lawyers’ Committee, I also direct our Education Project. 

Recently, the Lawyers’ Committee filed a motion to intervene in a well publicized 

federal lawsuit by the State of Connecticut against the Secretary of Education, Margaret Spellings, and the United States Department of Education regarding the No 

Child Left Behind Act (NCLB) on behalf of the State Conference of the NAACP and 

several individual plaintiff parents and their school age children, who attend lowperforming Title I schools in Hartford. See Appendix A and B. 

The Lawyers’ Committee is a member of the Leadership Conference on Civil 

Rights, which supported many of the provisions in NCLB and supported final passage, as well as full funding. The Lawyers’ Committee has not examined or taken 

a position on each and every provision of NCLB, however, and like most organizations, there may be provisions in the law we determine should be improved in the 

next reauthorization. We look forward to reporting back to the House Committee on 

Education as we progress in our process of reviewing implementation of the law, as 

well as the statutory, regulatory and enforcement barriers to full realization of 

NCLB’s promise. 

The title of this hearing aptly describes the critical need, from a civil rights perspective, for school districts to publicly disclose data on the performance of specific 

groups of children, particularly those who have been historic victims of unequal educational opportunities. 

The Promise of NCLB 

The NCLB Act joins generations of legal efforts to secure equal educational opportunities for racial and ethnic minorities, poor and other disadvantaged schoolchildren. The journey in the modern era began with Brown v. Board of Education 

aimed at dismantling the dual system of de jure segregation. That quest continued 

with equal financing suits to eliminate disparities in funding between property rich 

and poor school districts that relied heavily on property taxes to fund local education. More recently, a new generation of adequacy funding suits seek to make the 

state pay for the standard of education that is guaranteed by law. All of these efforts are designed to produce equality in theory, as well as in the output of educational achievement. 

Amidst this backdrop, the NCLB Act became the federal government’s means to 

ensure the highest level of educational attainment, particularly for low income and 

under performing children. From the perspective of advocates for educational equity 

and improvement, data on the performance of school districts in the aggregate and 

the performance of groups of students in the disaggregate provide crucial information on the extent and scope of inequality, as well as hopeful evidence that some 

schools are improving. Therefore, civil rights legal organizations join with many proVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
24

fessional educators in promoting the transparency and the disaggregation of data 

on student achievement. 

NCLB’s premise is that all children can learn and are capable of becoming proficient in reading and math. Further, NCLB’s promise is that all schools will provide 

the quality teaching, curriculum aligned to standards, and resources needed to 

make good on this goal by the year 2014. This may seem like too little time for 

school boards and school officials at the state and local level. But for children and 

their parents consigned to low-achieving schools, like those in Hartford, the timeline 

in NCLB is not soon enough. For example, the entire Hartford School District has 

‘‘failed to make ’adequate yearly progress’ under NCLB and has been identified by 

the State as a district ‘‘in need of improvement’’ under Title I.’’ See Memorandum 

of Law In Support of Motion To Intervene on Behalf of Connecticut State Conference of the NAACP and Minority Parents And Students In Connecticut (‘‘Motion 

To Intervene’’) at 4, Connecticut v. Spellings, No. 3:05-CV-01330 (D. Ct. Jan. 30, 

2006). While NCLB promises to ensure that all schools will provide all students 

with a quality education by the year 2014, for students who attend school in the 

Hartford School District, 2014 is much too late. As it stands now, these children attend substandard schools that are failing to provide them with an education that 

will enable them to compete on a level playing field with other students in the state, 

the nation and the world. Motion To Intervene at 12. In fact, if conditions in the 

failing schools in Hartford, Connecticut, and other cities throughout the country, are 

not improved immediately, there is little chance that students forced to attend these 

failing schools will have a realistic opportunity to succeed in school or in life. 

The Importance of Disaggregated Student Achievement Data 

Simply put, when test scores are not broken down by race, income and other important categories, our nation’s wide and unacceptable achievement gaps are covered up. When minority students don’t count, there is little incentive for schools to 

pay attention to their needs. Schools are able to boast of successes even when their 

minority, low-income, or disabled students are barely able to decipher words or solve 

simple math problems. 

When these historically underserved groups of students do count, achievement 

gaps are exposed and schools can no longer slide by, or be considered successful 

when they fail to properly educate their minority students. Again, using Connecticut 

as an example, while 88% of white fourth grade students in Connecticut are considered proficient in math, only 56% of African-American Connecticut fourth grade students are considered proficient in math. See Summary of Student Achievement on 

the Connecticut Mastery Test, available at www.cmtreports.com/iReport/Report.aspx . Similarly, while 76% of white fourth grade students are considered proficient in English only 41% of African-American fourth grade students are considered as such. Id. 

When minority students’ scores count, educators know they must educate all students to high standards, and they can be empowered to do so. Robust reporting of 

achievement data can provide educators with tools to identify the individual students and groups of students who most need their help. Parents have information 

not only on their own child’s achievement, but on how that achievement compares 

to his/her subgroup within the school, the school as a whole, the school district and 

the state. Parents can shop for schools, if they are able, with better ‘‘consumer information.’’ They can decide whether to try to take advantage of NCLB’s transfer provisions if their child is in a school ‘‘in need of improvement.’’ And parents, acting 

together or through organizations like the NAACP in Connecticut, can organize and 

pressure their state and local officials to do a better job in improving their schools 

and ensuring the high-quality teachers and resources they need to succeed. 

History of Disaggregated Student Achievement Data Under Title I 

Beginning in 1994, Congress required disaggregation of student achievement data 

on state assessments required under Title I. This measure was not originally included in the legislative drafts of the bill in the House or the Senate, including the 

bill proposed by the Clinton Administration. Under the visionary leadership of members of this Committee, however, including that of Rep. Major Owens (D-NY), Rep. 

Xavier Becerra (D-CA) and other members of the Black and Hispanic Caucuses, 

joined by members on both sides of the aisle, Congress agreed to require all schools, 

school districts and states receiving Title I funds to disaggregate student achievement data as follows: 

Within each State, local educational agency, and school by gender, by each major 

racial and ethnic group, by English proficiency status, by migrant status, by students with disabilities as compared to nondisabled students, and by economically 

25

disadvantaged students as compared to students who are not economically disadvantaged.

Improving America School’s Act of 1994, Pub. L. No. 103-382, § 1111 (b)(3)(I), 108 

Stat. 3518, 3525 (1994). 

However, two problems arose with this new provision: 1) the federal government 

and the states were reluctant to impose real accountability on schools and school 

districts for the actual progress of any of the subgroups, and 2) many states did not 

report complete, user-friendly data disaggregated by the required categories. As a 

result, while there was some increase in the availability of data on achievement 

gaps, there was very little encouragement to work toward actually closing them. 

In the NCLB of 2001, however, there was strong bipartisan consensus that overall 

scores, or averages, should not be allowed to obscure the large achievement gaps between poor and non-poor and minority and majority students. Thus, both the accountability and the reporting (or ‘‘report card’’) requirements were tightened. 

The result has been greater transparency, and in many schools, greater attention 

to closing the gaps and improving educational opportunity for groups of students 

historically ‘‘left behind.’’

The NCLB Undercount: the Recent ‘‘N’’ Size Controversy = ‘‘Gaming the System’’

The recent reports by the Associated Press on the so-called ‘‘N’’ size issue reflect 

one of a number of ways states have tried to ‘‘game the system,’’ according to 

Dianne Piche of the Citizens’ Commission on Civil Rights.1 See Appendix C. The 

‘‘N’’ size refers to the minimum number of students needed in a subgroup before 

that subgroup’s scores are counted for purposes of determining ‘‘adequate yearly 

progress’’ (‘‘AYP’’) under NCLB. 

NCLB has forced states to make some difficult political choices: they can either 

improve education or lower the bar. Unfortunately NCLB has created a law of unintended consequences. The No Child Left Behind Act has been interpreted to mean, 

‘‘No State Wants to Look Bad’’ in terms of annual yearly progress. To comply with 

one of the goals of NCLB, to increase learning for all students, states have narrowed 

their strategies to two logical choices—improve the quality of education or lower the 

bar for satisfying state goals set on standardized tests. Given a further scientific 

principle that a rational actor often tends to choose the course of least resistance, 

many state education authorities have opted to lower the bar or omit data to look 

good because this choice offers less resistance than improving the product of education in the schools. See James E. Ryan, Article, The Perverse Incentives of the 

No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 947-48 (2002). The ‘‘N’’ size controversy demonstrates that some states have taken advantage of a legal loophole in 

NCLB. 

Congress did not prescribe a minimum ‘‘N’’ size in the law, or even an acceptable 

range. Rather, the law leaves it up to the states to set their ‘‘N’’ size (as well as 

other accountability requirements) and to submit their accountability plans to the 

Secretary of Education for approval. The regulations issued by the Department of 

Education, provide in relevant part: 

Sec. 200.7 Disaggregation of data. 

(c) Inclusion of subgroups in assessments. If a subgroup under Sec. 200.2(b)(10) 

is not of sufficient size to produce statistically reliable results, the State must still 

include students in that subgroup in its State assessments under Sec. 200.2. 

(d) Disaggregation at the LEA and State. If the number of students in a subgroup 

is not statistically reliable at the school level, the State must include those students 

in disaggregations at each level for which the number of students is statistically reliable—e.g., the LEA or State level. 

Improving the Academic Achievement of the Disadvantaged, 67 Fed. Reg. 71709 (December 2, 2002) (codified at 34 C.F.R. § 200.7). 

We can stipulate that there may be some justification for not considering a small 

number of students’ scores, for example, where a subgroup truly is too small to yield 

statistically valid or fair results for accountability purposes. But, it raises reasonable suspicion that some states are trying to permit schools and districts to evade 

their responsibilities when the minimum ‘‘N’’ sizes range from 5 students in a subgroup in the state of Maryland to up to 100 students in California. Moreover, the 

Center for Education Policy, which has been tracking NCLB implementation, reported that 23 states moved to increase their minimum ‘‘N’’ size in 2004-05.2 Finally, we are not aware of any states that have moved to decrease their ‘‘N’’ size 

recently in order to enhance accountability for their subgroups. 

26

However, it is nothing short of unconscionable that such large numbers and percentages of African-American, Latino and Native American students’ scores are ‘‘left 

behind.’’ For example, the AP series reported: • Nearly 2 million students across the nation have scores that were not counted. • The vast majority of these students were minority students. Less than 2 percent 

of white students’ scores were excluded at the school level, while about 10% of African American and Latino students’ sores were left out of AYP subgroup calculations. 

Over 1/3 of Asian students’ scores and just under 1/2 of Native American students’ 

scores were excluded. • Nearly 400,000 students’ scores were excluded in California where the ‘‘N’’ size 

can be as large as 100 students. African American students may be numerous 

enough to be counted in schools elsewhere in the country, but because of the state’s 

excessive minimum group size rules, in many parts of this diverse state, we found 

that their scores are not counted at the school level. 

When students’ scores don’t count and their schools continue to make AYP, students are denied statutory rights and benefits under NCLB. Take California, for example. If NCLB is going to fulfill its promise as the civil rights education program 

of this generation, aggressive steps must be taken by states and the federal government to ensure that the students who are the primary intended beneficiaries of Title 

I are not ignored. 

Conclusion 

In conclusion, I recommend that NCLB maintain the full provisions for 

disaggregation of data. In addition, to fix the ‘‘N’’ size loophole problem, the Committee should consider proposing legislation that continues to provide states with 

discretion, but sets a maximum limit on the number of excluded students. In addition, if the state excludes a minimum number of students from testing, it should 

review the data on the excluded students to determine their level of proficiency. In 

all cases of excluded students, school districts should use remedial measures to aid 

those students in need of improvement. 

APPENDIX A

Not Getting Left Behind, WASH. POST, Feb. 5, 2006, at B06, available at http:/

/www.washingtonpost.com/wp-dyn/content/article/2006/02/04/

AR2006020400915—pf.html. 

Not Getting Left Behind 

IT’S BEEN a long time in coming, but at least a few of President Bush’s opponents 

are beginning to see the potential of his No Child Left Behind legislation. Thanks 

to the law, which requires states to assess children annually and to break down the 

results by minority group and income level, it has for the first time become possible 

to track which schools are failing which students. More important, the law also requires states to turn schools around and help them succeed. 

True, neither the Lawyers’ Committee for Civil Rights Under Law nor the 

NAACP, two of the organizations that are beginning, cautiously, to see the possibilities of the law, is exactly advertising its support. But last week, the Connecticut 

chapter of the NAACP did quietly come down on the side of Education Secretary 

Margaret Spellings, who is being sued by Connecticut over some of the act’s provisions. The state’s politicians are angered by Ms. Spellings’s refusal to waive some 

of the No Child law’s requirements—specifically, the state wants to test its children 

every other year, instead of every year—and they contend that the law doesn’t provide the necessary funding to allow states to meet its requirements. 

Civil rights lawyers point out that this line of argument could enable states not 

to comply with other laws, among them the Civil Rights Act, which was also ‘‘unfunded.’’ But John Brittain, chief counsel to the Lawyers’ Committee, goes further, 

noting that Connecticut, although the wealthiest state in the country, also has the 

biggest achievement gap between white and minority students. ‘‘Children deserve 

those annual assessments,’’ he says, so that they can be given the help they need. 

In terms of its goals and intent, if not its implementation, he also calls No Child 

Left Behind potentially the ‘‘greatest civil rights education statute that has ever 

been passed.’’

These are brave statements: Not all civil rights advocates will be pleased to see 

the Connecticut NAACP joining a lawsuit on the same side as the Bush administration. They may also be too radical for much of the Democratic Party. In his response 

to the State of the Union speech last week, Virginia Gov. Timothy M. Kaine (D) repeated his party’s line, claiming the act is ‘‘wreaking havoc on local school districts.’’ 

The NAACP needs to drag its friends around to its point of view. By helping to finetune and implement the law instead of constantly running it down, Democratic poliVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
27

ticians, child welfare advocates and teachers unions could help fix broken school systems as well. A profile of once-disastrous, now-successful Maury Elementary School 

in Alexandria by The Post’s Jay Mathews last week showed what can be achieved 

if teachers and administrators use the law well. It’s an odd idea, getting the Democrats to embrace a Republican project. But if they are brave enough to do it, thousands of inner-city children will be better off. 

APPENDIX B

Jeff Archer, Civil Rights Groups Back NCLB Law in Suit, EDUC. WEEK, Feb. 

8, 2006, available at http://www.edweek.org/ew/articles/2006/02/08/

22conn.h25.html. 

Civil Rights Groups Back NCLB Law in Suit

Connecticut NAACP files to intervene on side of Bush administration.

By JEFF ARCHER

Civil rights groups are seeking to join the federal government in defending the 

No Child Left Behind Act from a legal challenge by Connecticut, potentially giving 

the Bush administration important, if unlikely, new allies in arguing for the law. 

The Connecticut NAACP, on behalf of three minority students in high-poverty 

schools, filed papers in federal court in New Haven, Conn., on Jan. 30, asking the 

judge in the Connecticut v. Spellings case to allow the group to intervene on the 

side of the U.S. Department of Education. 

Connecticut v. Spellings 

Connecticut Makes Oral Arguments 

Connecticut filed a lawsuit in August charging that the No Child Left Behind Act 

is an unfunded mandate. A judge told state Attorney General Richard Blumenthal 

last week to get more documentation for the state’s case. 

Civil Rights Groups Weigh In 

Four civil rights groups, including the Connecticut NAACP and the national office 

of the NAACP, last week sought to join the U.S. Education Department in defending 

the No Child Left Behind Act. Dennis C. Hayes, the general counsel for the national 

NAACP, explained that allowing Connecticut to opt out of the federal law’s test requirements would set a dangerous precedent for other states. 

Also providing legal support for the effort are lawyers from three national groups: 

the Citizens’ Commission on Civil Rights and the Lawyers’ Committee for Civil 

Rights Under Law, both based in Washington; and the national office of the NAACP 

in Baltimore. 

Scot X. Esdaile, the president of the Connecticut NAACP, said the filing should 

not be read as an endorsement of the federal government’s handling of the education law, but rather as an attempt to ensure that the voices of poor and minority 

students are heard in the case. 

‘‘If you want to get at the table, you have to choose a side,’’ he said. ‘‘On this particular issue-not on all the intricacies of the law-we choose to stand on the side of 

the federal government.’’

Calling the No Child Left Behind Act an illegal ‘‘unfunded mandate,’’ Connecticut 

Attorney General Richard Blumenthal filed suit against the Education Department 

in August, after the agency refused to grant the state waivers from some of the 

law’s testing provisions. (‘‘Connecticut Files Court Challenge to NCLB,’’ <http://

www.edweek.org/ew/articles/2005/08/31/01conn.h25.html> Aug. 31, 2005.) 

Connecticut education officials say that assessing students in grades 3-8, as the 

law requires, will cost $8 million more than federal officials are providing. The state 

has tested only in grades 4, 6, and 8, as well as grade 10, and it questions the education value of expanding its assessments. 

Bad Precedent? 

Dennis C. Hayes, the general counsel at the National Association for the Advancement of Colored People’s Baltimore headquarters said allowing Connecticut to opt 

out of such a critical part of the federal law would set a dangerous precedent by 

encouraging policymakers elsewhere to do the same. 

‘‘If we view No Child Left Behind in terms of civil rights, then we are concerned 

about a state begging to be excused from participating or complying with an act intended to help disadvantaged people,’’ he said. 

Signed into law by President Bush in early 2002, the No Child Left Behind Act 

seeks to hold schools and districts accountable for student performance, particularly 

among those students traditionally seen as at risk of academic failure. 

28

Civil rights leaders have been split in their views of the law. While agreeing with 

its goals, some argue that it relies too heavily on test scores and stigmatizes lowincome students. Others see it as an effective way to redirect resources to needy students. 

Lawyers for some of the groups seeking the intervention say they still have concerns about the law, but they worry about letting a state off the hook for improving 

student achievement. 

Although Connecticut’s overall student performance is among the highest in the 

country, the achievement gaps between its minority and white students are some 

of the widest in the country, by some measures. 

‘‘The key question is about the accountability of state and local officials for the 

progress of students,’’ said William L. Taylor, who chairs the Citizens’ Commission 

on Civil Rights and is a long-time desegregation lawyer. 

Specifically, the Connecticut NAACP asked in its motion last week to become a 

defendant in the suit, along with the U.S. Education Department. Should the judge 

grant that, and the case moves forward, the civil rights lawyers from each of the 

groups could then argue against Connecticut’s suit in court. 

John R. Munich, an Atlanta-based lawyer who has followed the case, said the result could be that a suit over who pays for what would concentrate more than it 

would otherwise on the educational needs of the law’s intended beneficiaries. 

‘‘It adds an extra dimension to the lawsuit, and I assume what the civil rights 

groups will try to do is focus on the impact of NCLB on children,’’ said Mr. Munich, 

a partner at Sutherland, Asbill, and Brennan LLC, which often represents states 

in education finance cases. 

No Decision on Dismissal 

Reacting to last week’s motion, Chad Colby, a U.S. Education Department spokesman, said, ‘‘We’re encouraged by their support.’’

But Connecticut Attorney General Blumenthal said in a statement that he regretted that he and the NAACP, ‘‘are on different legal sides when we share the basic 

goals of No Child Left Behind.’’

Gary Orfield, the director of the Civil Rights Project at Harvard University and 

a critic of the way the NCLB law has been carried out, called it ‘‘unwise’’ for civil 

rights leaders to have taken the action. 

‘‘I think it’s important that they be specific and limit their targets, and don’t allow 

themselves to be used as allies to enforce a law that really has serious, counterproductive effects on schools that serve minorities,’’ he said. 

Last week’s action came as U.S. District Judge Mark R. Kravitz, who is presiding 

over the case, heard oral arguments from both the state and the federal government 

on a motion by the latter to dismiss the case. The civil rights groups also filed papers in support of the call for dismissal. 

Any expectation of a speedy decision on whether to dismiss the case was swept 

away on Jan. 31 when Judge Kravitz told Mr. Blumenthal to amend his complaint 

with new information about the minimum cost of putting in place the additional 

testing required by the NCLB law. 

The Education Department argues that Connecticut’s estimates of what it will 

cost to meet the requirements include a testing regimen more expansive than what 

the law requires. 

Mr. Blumenthal has until Feb. 28 to file the additional documents, after which 

the federal government will have 30 days to respond. By then, Connecticut plans 

to have administered the additional tests at the heart of the dispute. 

Both sides also have until the end of this month to comment on the Connecticut 

NAACP motion to intervene. 

APPENDIX C

Lynn Olson and Linda Jacobson, Analysis Finds Minority NCLB Scores Widely 

Excluded, EDUC. WEEK, Apr. 26, 2006. 

Analysis Finds Minority NCLB Scores Widely Excluded

By LYNN OLSON and LINDA JACOBSON

The federal government is permitting many schools to escape accountability for 

the progress of racial or ethnic subgroups under the No Child Left Behind Act, according to a computer analysis released by the Associated Press last week. 

Under the law, signed by President Bush in 2002, schools must meet annual performance goals for their student populations as a whole and for specific groups of 

students. Those groups include racial and ethnic minorities and students who are 

from low-income families, speak limited English, or have disabilities-as long as 

29

enough students in each category meet minimum group sizes set by each state and 

approved by the U.S. Department of Education. 

Schools receiving federal Title I aid that miss the targets, known as adequate 

yearly progress, or AYP, for two or more years are subject to increasingly serious 

consequences. 

But, according to the AP’s analysis, the minimum group, or ‘‘N,’’ sizes set in many 

states are so large that schools aren’t being held accountable for the subgroup performance of some 1.9 million students who fall into various racial or ethnic categories in calculations of AYP. 

While Louisiana will count a subgroup once it has 10 students, for example, in 

California each subgroup must have at least 50 students and make up 15 percent 

of students tested in the school. (Once a California subgroup has at least 100 students, it no longer has to meet the 15 percent minimum.) 

In most cases, schools must still publicly report the subgroup performance of students, even if it doesn’t meet the size for counting that group in AYP calculations. 

All of the scores are supposed to be included in calculating whether a school’s student body as a whole has met its AYP targets. 

‘‘I do think that states have gamed the system,’’ said Dianne M. Piche ́, the executive director of the Citizens’ Commission on Civil Rights, an advocacy group based 

in Washington. ‘‘What we learned from this is that minority students are much 

more likely not to be counted than white students.’’

State officials countered that even when students’ test scores aren’t counted for 

subgroup accountability in a racial or ethnic category at the school level, they still 

may be counted in another category, and in subgroup results at the district level. 

‘‘Just because they’re not included in the ethnic group, [it] doesn’t mean they’re 

not in the English-language-learner group,’’ said Pat McCabe, the director of policy 

and evaluation for the California Department of Education. 

‘‘We’re a big state, and we have a lot of students,’’ he said. ‘‘They made it sound 

like we’re hiding the kids.’’

According to the AP, the achievement scores of more than 400,000 minority students in California are not being counted by their racial or ethnic categories at the 

school level when determining AYP results. 

Minority Reporting 

To arrive at a nationwide estimate of how many students are not included in racial or ethnic subgroups in calculating AYP at the school level, the Associated Press, 

a news-gathering cooperative, used 2003-04 school enrollment figures collected by 

the federal government and the current minimum ‘‘N’’ sizes approved for each state. 

The AP analyzed enrollment for each school in grades 3-8 and in grade 10, because the law requires states to test students annually in grades 3-8 and at least 

once in high school for purposes of calculating progress. The analysis focused only 

on the law’s five major racial and ethnic categories: white, black, Asian, Native 

American, and Hispanic. It did not examine students in other categories, such as 

those with disabilities, to avoid double-counting students who fall into multiple categories. 

It found that the scores for fewer than 2 percent of white children nationally 

aren’t being counted as a separate category in calculating AYP at the school level. 

In contrast, Hispanic and black students have roughly 10 percent of their scores excluded from subgroup accountability, as do more than one-third of Asian students 

and nearly half of American Indian students. 

Chad Colby, a spokesman for the U.S. Department of Education, said, ‘‘It’s something that [Secretary of Education Margaret Spellings] is going to look into.’’

But he noted that before enactment of the law, an overhaul of the Elementary 

and Secondary Education Act, only a handful of states were even reporting test 

scores broken down by racial and ethnic subgroups, something they routinely do 

now. 

Based on the AP’s own analysis, Mr. Colby added, about 93 percent of students 

are included both in a school’s overall population and in a racial or ethnic category 

for purposes of calculating AYP. 

‘‘I will be seeking from Secretary Spellings detailed information about this problem and about what steps she and her department are taking to correct it,’’ said 

Rep. George Miller of California, the ranking Democrat on the House Education and 

the Workforce Committee. 

The provision in the law was meant to ensure that judgments made about schools 

are statistically valid and reliable. But Ross Wiener, a principal partner with the 

Education Trust, a Washington-based advocacy group that has strongly supported 

the law, said, ‘‘If we were really looking to achieve those goals, there would be much 

30

more consistency across states.’’ He suggested the Education Department convene 

experts to craft more uniform guidelines. 

ENDNOTES

1 Citations to some of the AP stories: 

• 2 million scores ignored in ’No Child’ loophole, THE ASSOCIATED PRESS, Apr. 17, 2006, 

http://www.msnbc.msn.com/id/12357165/from/ET/. • Nicole Ziegler Dizon, Ben Feller, and Frank Bass, States Omit Minorities’ School Scores, 

THE ASSOCIATED PRESS, http://www.washingtonpost.com/wp-dyn/content/article/2006/

04/17/AR2006041700677.html. • Nicole Ziegler Dizon, No Child Loophole Masks Achievement Gap for Black Students, THE 

ASSOCIATED PRESS, Apr. 17, 2006, http://www.belleville.com/mld/belleville/news/politics/

14362964.htm. • No Child Left Behind, WALL STREET JOURNAL, available at http://online.wsj.com/article/SB114626648623739377.html?mod=googlenews—wsj. 2Lynn Olson, Shifts in State Systems for Gauging AYP Seen As Impeding Analysis, EDUCATION WEEK, Nov. 30, 2005; Center on Education Policy, From the Capital to the Classroom: 

Year 4 of the No Child Left Behind Act (2006). 

Chairman MCKEON. No objection. Those documents will be included in the record. 

Has roll been called? We have just been called to the floor to 

vote, and if we can ask you to be patient with us, we have a couple 

of votes, and we will return in about 20, 25 minutes. So the Committee will stand in recess then until the conclusion of those votes. 

Thank you. 

[Recess.] 

Mr. OSBORNE [presiding]. If we could please resume seats, etc. 

I apologize for the delay. The Chairman misrepresented the 

length of time, you will notice. And we are now ready for questions, 

and I will start. 

As you know, we have 5 minutes to ask our questions and get 

your answers in so we can try to be—make the interchanges as 

rapidly as possible with respect to this. 

And let me start with you, Secretary Simon. The whole N size 

thing concerns me. I am not saying I disagree with it, but I am not 

sure I totally grasp it, and I am not sure I totally grasp the mathematics of it. Since you were a math professor, math teacher, maybe 

you can help me with this. And Dr. Peiffer has indicated Maryland 

may be the smallest N size at five. I think my State, Delaware, is 

40. But then there are percentages in some of these States that 

make it a lot larger. 

It seems to me the whole concept of No Child Left Behind and, 

as Mr. Miller said, in addition to it being an education act, it is 

a civil rights act as well as it is to educate everybody. And when 

you have these differing group sizes regardless of the size of the 

particular school or the class, it seems to me it begs the possibility 

that there are more kids being left behind when you get your N 

sizes or disaggregated group sizing too large. Or is the algebra or 

math of this such that I am not correct in terms of what I am saying? And I will have some follow-up questions, but let us just start 

with that. I mean, these are basically State plans in which the Department of Education is allowing a substantial amount of variance, and my question to you is, why? 

Mr. SIMON. I think we have to go back to when the law was first 

created. In 2003, when the plans were due, this was brand new for 

States and for the Department. In terms of these plans and how 

to make the plans fair and reliable, make them fair to the States 

31

as well as make them fair to children, we were breaking new 

ground, and so in the correct, I think, haste to get these accountability plans in, we tried to make that balance, the right tension 

between what was fair to schools and States and what was fair to 

kids. 

In the interim, we have had about half of the States since 2003 

request a change in their N size. Many, I will have to tell you, we 

have said, no, to on their first request. So the final approval that 

you see on their official plan changes were many times a result of 

negotiation with them from an initial request. 

We look at a lot of information when we determine an N size. 

We don’t just say, well, because State X has 40, then you are automatically going to get 40. We have ask, in every instance when 

there has been a change request for an N size, we ask for impact 

data. We ask it from the school level. How many schools will this 

impact in terms of getting subgroups out of accountability? We look 

at the size of the school. We look at the distribution of kids. We 

look at the racial balances. We look at a lot of things, and we make 

the State justify to us how that is going to make their plan as reliable as it can be. 

Now, that having been said——

Mr. OSBORNE. Not to interrupt you. Why don’t we just have one 

number for everybody? I mean, playing devil’s advocate, why not 

just say, it is 30 for everybody or whatever it may be? 

Mr. SIMON. Simply because the States——

Mr. OSBORNE. Thirty or less. 

Mr. SIMON. The States, in terms of how they organize their 

schools, some States have very small schools, and an N size of 30 

is not appropriate. It would be too big. It would let all kids out of 

accountability, all subgroups out of accountability. Other States, 

such as Texas and California, they have schools of over 1,000 or 

2,000 kids. The size of 30 probably wouldn’t be reliable enough for 

a school that large. So we look at, again, individuality of how the 

State schools are organized. 

Now, that having been said, starting this year with the latest 

rounds of requests for changes of N size, we had, I believe, 10 

States request to increase an N size. We have not granted any of 

those. We granted one, and that was to Alaska, and what they 

were doing was getting—they had higher N sizes for their special 

ed and LEP kids. So we agreed on a compromise where their normal or their regular N size was raised a little, but their LEP and 

special ed N size was dropped. So now they are on a consistent N 

size. That is the only approval we have had this year. We basically 

said, no, with the—with this past year being the watershed year, 

if you will, in terms of all grades being tested, this is the first year 

every State has all grades tested. 

Mr. OSBORNE. Let me bring Dr. Peiffer in on this. 

Maryland is a relatively small State but has some fairly large 

schools. Do you agree with this? Or do you have a very different 

vantage? Not that I am trying to pitch you against each other. I 

am just curious on your views of the N size, particularly in light 

of what Maryland has done. 

Mr. PEIFFER. For Maryland, it was a logical choice in the respect 

we had been using an N-5 during the 1990’s with their old accountVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
32

ability system, and transitions over to No Child Left Behind, it 

really didn’t create a concern here. 

Now, our schools we have a relatively dense population. It is a 

small State, 890,000 students perhaps. Our schools, particularly in 

the suburban areas and urban, are relatively large, but we felt that 

even with those, we are finding that some schools might have elementary schools that might have 40 special education students, 

and 40 would eliminate that subgroup, and in many cases, as far 

as the special services subgroups, that would be the largest of 

them. So we felt a five pretty well represented what we wanted to 

do with schools. 

Mr. OSBORNE. OK. I still have to work this out in my own mind. 

I am not disagreeing with anything anybody has said here. I just 

want to make sure I understand that. I guess I just have this concept that you could have an N size that is, at least for most schools, 

would be a workable number at a certain cap. Of course, if I had 

my way, I might even have a national standard exam to go along 

with all this, too, but that is a whole other issue you probably don’t 

want to get into today, but I think it is an important subject in 

terms of our review as far as what the authorization’s going to do. 

And Secretary Simon, I am concerned in what some of these applications are for these schools you are turning down, et cetera. Not 

State by State, but just in general, what you are looking for? And 

why you are making the decisions at the Department that you are? 

And I have a lot of faith in what you all do over there, so I would 

be interested in knowing about that. But my time is up and let me 

yield 5 minutes to Mr. Miller. 

Mr. MILLER. Thank you, Mr. Chairman. 

Mr. Simon, toward the end of his testimony, Mr. Brittain States 

that when students’ scores don’t count and their schools continue 

to make AYP, students are denied statutory rights and benefits 

under No Child Left Behind. Is that accurate? 

Mr. SIMON. Yes, sir. I would agree with that. 

Mr. MILLER. So what happens to these students now that they 

don’t count? 

Mr. SIMON. I want to respectfully disagree that they do count. As 

I indicated before, in many cases, these students are——

Mr. MILLER. Does not the status of the school trigger a series of 

events in terms of interventions and theoretically additional funding that flows to those schools because of the status of that school? 

Mr. MILLER. Sure. Yes. 

Mr. MILLER. When I look at the competition for school dollars in 

school districts, certainly big diverse districts, that status may 

prove to be a relief to somebody who is apportioning dollars to 

schools because, theoretically, they are AYP, and you have other 

schools that aren’t AYP, and you have to do some triage. 

Mr. SIMON. That is important to us. We want to make sure if a 

school is identified, it truly is an improvement. If it is a false positive, we don’t want that either. 

Mr. MILLER. Identified as AYP because of the N number, and 

those students may not get the right tutoring, may not get the 

transfer, may not get mentoring, may not get additional flows of 

money that are targeted from the national act to those schools that 

are schools in need. 

33

Mr. Brittain, is that accurate? 

Mr. BRITTAIN. Yes. Precisely, Congressman Miller. That is what 

we are complaining about, that the whole set of interventions are 

not made available, including the basic notice that they may have 

a right to tutors; they may have a right to transfer. Many nonperformance schools, they have a right to a whole set of other aid, 

special circumstances. 

Mr. MILLER. That is how we wrote the law in the beginning. We 

were trying to close a gap, and the remedial services and hopefully 

revenues would be made available to schools to—because now you 

have identified a cohort of students that are in need of help. 

Mr. Peiffer, this was touched upon by Mr. Castle, but you obviously have made—you have overridden the idea of how this is unreliable if you have five students in a school of 800 or 900. 

Mr. PEIFFER. When we look at the subgroup—my apologies. 

When we look at the subgroups, we use the confidence interval statistic so we are not being unduly fair—unduly harsh on the school, 

so it is if a very, very small subgroup, we would accept a target 

a little bit lower than their normal target for AYP for that year. 

If it is a small group. If it is a very large group, it is pretty much 

on target for the year. So that is—that the statistical allowances 

we have put in place have helped people feel it has been pretty 

fair. 

Mr. MILLER. It would seem to me that there is a very high burden on the Department of Education in accepting an N group that 

is of any substantial size because if this starts to appear to be fairly arbitrary—I appreciate the rationales, but the acts and the numbers seem to be fairly arbitrary. If that is the case, then you have 

the Department of Education denying fundamental and basic services that have been designed to help the achievement of these children, from those children getting those services, because it sets the 

status of the school which triggers the following actions. Does that 

seem to follow? 

Mr. SIMON. Well, as I indicated before, we say, no. 

Mr. MILLER. I know you say no. I am wondering what you said 

yes to. 

Mr. SIMON. Again, in the case—in the case that we just heard 

here, they have a confidence interval that goes along with the five. 

Five is extremely low, and we always sing their praises for having 

an N size that low. That is commendable. Don’t get me wrong. 

Mr. MILLER. Is it possible you could have a much lower number 

with the confidence index, and that would tell you more about that 

school and whether that is a rational determination or not as opposed to 200; you know, if Texas and California look alike in a lot 

of ways, and we have completely different numbers. 

Mr. SIMON. I think that is right, and that is one, as I mentioned 

in my testimony, the Secretary intends to call later this fall when 

we get the latest numbers in from this round of testing. This will 

be the first year every State will have tested all their grades. We 

want to get the States in and get not only N size but a number 

of other factors. We want to look at confidence intervals. 

Mr. MILLER. Right now, under current law, you can talk to the 

States all you want, but under current law, what triggers the 

events that lead—you know, we need to call schools in need of imVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
34

provement because, in theory, the Federal Government is going to 

ride to the rescue with some offerings that are available to the students and to the families, maybe this year for the first time with 

some revenues to those schools that are in need of improvement so 

that they can work their way out of it. But if they are never triggered, if they never show up on the scale, where do these students 

go to get that kind of help? 

Mr. SIMON. Again, we think we have had a pretty good balance 

in what we have approved and what we haven’t approved, knowing 

it has got to be looked at again. 

Mr. MILLER. These are stunning numbers of students that are 

excluded. And even if you want to say, well, they are counted in 

another way, they are counted in another category, they are economically disadvantaged or some other fashion, that still leaves 

schools where the fact is the N number has excluded students because they are not counted even if you try to put them in multiple 

boxes. I mean, that is——

Mr. SIMON. Yes, sir. We are totally in agreement. That is why 

we, again, think it is important to take another look at N size, and 

we have, and we are this year. 

Mr. MILLER. If I just might, Mr. Chairman, when you say you 

are taking another look at it, you are taking another look at it in 

what fashion? 

Mr. SIMON. In the sense that we intend to get the States together 

and reexamine, have each one of them reexamine each one of their 

N sizes as well as other measures they are using and justify to us 

now that we are testing more. We are 3 years into the law, justify 

to us in a way that we didn’t require in the early days as to why 

you still need an N size of whatever. 

Mr. MILLER. There is a lot of rationales why schools or States say 

they need these N sizes. I guess, Mr. Peiffer, we will hold you up 

as a model here until someone—but I assume you have large 

schools, suburban—you have metropolitan-area schools that are of 

substantial size, if I am familiar with Maryland. You have some 

rural schools. 

Mr. PEIFFER. Yes, sir. 

Mr. MILLER. You have some rural schools that are relatively 

small. You have schools that are heavily impacted by minorities. 

You have schools that are a majority minority. 

Mr. PEIFFER. Yes. 

Mr. MILLER. You have English learner schools, ad I have been 

out in some of the areas of Maryland; that is growing. 

Mr. PEIFFER. That is correct. 

Mr. MILLER. And yet the N sizes remain to be five with this, with 

some kind of index. 

Mr. PEIFFER. Yes, sir. To all schools. 

Mr. MILLER. I think, you know, that starts to look like the 

threshold that you may have to start working back from. I am assuming the validity there, because Mr. Brittain makes a fundamental point, you know, about this because now we are into—we 

are into the question of equal protection, and whether or not we 

have used an arbitrary standard to do this. You know, I think that 

No Child Left Behind—I am very proud of it because the fact is, 

you know, for the first time ever, we have legislatively made a comVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
35

mitment to educate every child to perform proficiently. But recognizing the gap that existed and the deficiencies that existed, we set 

in a series of triggers that would yield additional help to those students and to their families, and that is being shortstopped by what 

in many instances appears to be an arbitrary setting of this inside 

that excludes these students from being counted. My time is up, 

and I see you reaching for the gavel. Thank you. 

Mr. OSBORNE. Thank you, Mr. Miller. 

I would yield myself time to ask questions. I think I was next 

in order here. The only comment I would have is that I used to 

teach statistics. And a five, it is pretty hard to get any kind of significance; if one person fails, that is 20 percent, and in 20, one person fails, that is 5 percent. So I guess I would be interested, Dr. 

Peiffer, in just asking you how you find any statistical significance 

in using an N as small as five. 

Mr. PEIFFER. The statistic actually changes as you get closer to 

the 100 percent target in 2014. And it is by the nature—it is a statistics course beyond the one I took when I was in college. If you 

look at each year between now and 2014, the assistance that a 

school might get with an N-5 will become smaller and smaller until 

it will actually become zero because the fact is, the goal in 2014 

is to have 100 percent of the kids proficient, period. There really 

wouldn’t be any margin around that. 

Mr. OSBORNE. OK. I am not sure I totally understand that, but 

I accept it as being well reasoned, and somebody smarter than I 

must have worked on it. 

Mr. Brittain, you made a very interesting comment. You said 

that No Child Left Behind leaves two choices, either you have to 

improve education or you have to lower the bar.

And I just wondered what your assessment was? Do you feel that 

a large number of States have indeed lowered the bar? And do you 

feel that, from your perspective, that most States have made an 

honest good-faith attempt, or just what perception do you have of 

how things are being implemented. 

Mr. BRITTAIN. In my written testimony, Congressman Osborne, 

I do point to a law review article by one of my colleagues, Jim 

Ryan, who has studied the States and their determination of their 

testing standard. Some, such as I believe Georgia, have just increased their standard. Others have lowered their standards. Just 

like the N factor is the discretion given to States to comply, .we 

would hope that a more full investigation of what are our State 

standards would be made, and like the N factor, there would be 

some effort to try to establish insofar as the standards meet a minimum standard. And there are good States, like on the N factor, 

and not so good States. And there are good States on setting good 

rigorous standards, and there are some not so good States. And 

that is one of the unintended consequences of No Child Left Behind. 

Mr. OSBORNE. So what you are saying, it is rather mixed as far 

as your perception? 

Mr. BRITTAIN. Yes, and a continuation of the statement made by 

Congressman Miller with some of the inequality and unevenness 

and some of the lack of standards and arbitrariness in setting 

these minimum standards. 

36

Mr. OSBORNE. Certainly no one wants to look bad. It is sort of 

a fundamental factor of human nature. 

And so we understand that. 

Seems like the one opportunity to have some universal assessment is the NAEP test, and yet I realize that many States resist 

a national standard. They say, well, we are unique; we are somewhat different. 

And I guess a question to any or all of you is, do you feel that 

the nuclear NAEP is being used correctly or that it should be relied 

on more or that the principle of allowing each State to have quite 

a bit of discretion is working? Because, as you know, some type of 

a national standard would certainly circumvent some of the problems that you have already pointed out. So you have about a 

minute left, so if you want to make a quick comment, I would appreciate it. 

Mr. SIMON. From my perspective, from our perspective, we think 

the NAEP is very important. It does set a benchmark against 

which all States can be measured. 

But I think also Congress is wise in allowing individual States 

to set their own standards. That is what education is about. It is 

a State function. We can’t do that from Washington, D.C. 

NAEP is good in that it is a watchdog if you will on State standards and State performance. When you compare proficiency levels, 

grade levels in the individual States, they vary quite a bit. NAEP 

is the one standard that you can get back to. They can work in harmony with one another. You have to understand; they are different. 

NAEP is different from a State test. But I think it is a good benchmark upon which we can look at the whole country. 

Mr. OSBORNE. So would you suggest that if a State is by their 

own assessment performing very well but by NAEP standards not 

performing well, that some adjustment should be made? 

Mr. SIMON. I think it is a good basis for conversation within the 

State. I think if I were a citizen in the State with a child in the 

schools, I would be asking, why is that so? And do you in fact expect less from my child? 

Mr. OSBORNE. From the standpoint of your Department, do you 

feel this would be a wise tool to begin to use? 

Mr. SIMON. Again, I think NAEP was designed for a specific purpose. When we talk about proficiency on NAEP, we are not talking 

about grade level in a sense. It was a very—it is a high expectation 

exam. So I think we would have to really go back and look at why 

we have NAEP and what the real mission of No Child Left Behind 

is, but I think there is certainly a role for both State exams and 

NAEP in this process. 

Mr. OSBORNE. Thank you, my time is up. I would like to hear 

from all of you on that, but I don’t have time. So at this time, I 

would yield to Mr. Kildee. 

Mr. KILDEE. I thank you, Mr. Chairman. The concept of the N 

size was created to ensure the reliability of the data and also to 

protect the privacy of the students. 

Unfortunately, this has created a loophole that can prevent us 

from really knowing why and how many low-income students or 

minority students and students with disabilities are struggling in 

school. 

37

Without the disaggregation of data, we are really blind in addressing the problems of subgroups, and this was not exactly a 

brand new idea when we passed this bill because the previous reauthorization—and I was chairman then—we had disaggregation of 

data at that time in 1993. So it wasn’t something that was just 

thrown upon you that you couldn’t get used to. It has been a part 

of the Federal law, tightened up of course, and in the last No Child 

Left Behind was dating back to 1993. So there has been some experience with this. 

Let me ask you this, how can we maintain a meaningful 

disaggregation of data and still protect the privacy of students, 

which was one of the reasons we put this in, and also still identify, 

as Mr. Brittain has pointed out, the schools that need some special 

help? How can we achieve both, all three of those. I will address 

that to——

Mr. SIMON. I think the Secretary’s intention of gathering together the States to re-examine their plans, and when we say gather the States, we mean also to bring in psychometricians, statisticians that understand what reliability and validity are about, to 

understand how that is measured, to examine every State with 

those experts, to re-examine what, for example, their N size—that 

is one of the things we are talking about, but also in conjunction 

with their use of competence interval, their use of standard measures, their use of other statistical measures, to get some professionals that can relook at this now. In view of the fact we have 

more kids being tested now, what was appropriate in 2003 for an 

N size school in Michigan may not be appropriate any more because Michigan is not testing the same number of children. It is 

testing more children than it was in 2003, what was reliable, what 

was necessary for validity and reliability then may or may not be 

appropriate now. And so I think that is why it is important to reexamine it, re-examine it with some professional assistance, and 

then require some type of justification for a State to say it wants 

an N size of X. 

Mr. KILDEE. It seems that, initially, when the States were setting 

their N size, there was great flexibility and, even from your Department, a certain laissez-faire as they set their N size, but now 

there is a greater rigidity when it comes to changing their N size. 

Am I characterizing that correctly? 

Mr. SIMON. Yes, sir. And I as I mentioned in my testimony, not 

because of the personnel that are there but because of experience. 

We are a lot smarter now than we were in 2003. 

Mr. KILDEE. I notice Michigan recently asked that their N size 

be increased from 30 or 1 to 30 plus 10, and you turned that down. 

Have you changed that many States within the past year, their N 

size? 

Mr. SIMON. Within the past year, we have had 10 requests for 

changes. We have only granted one, and that was to get the N sizes 

consistent among various subgroups. 

Mr. KILDEE. All right. All right. Is there any way that we could 

have a better objective, Federal norm or at least some guidelines 

as to the N size because, as I said initially, they are all over the 

lot, wide disparities from one State to another? Is there any way 

38

we can establish some guidelines if not a norm for the N size for 

the various States? 

Mr. SIMON. I think that is what we hope will come out of our discussions later on this year with the chiefs, with the States, with 

their accountability directors and with professionals in measurement, is to give us some data that we can give you to help inform 

you when you make those decisions. 

Mr. KILDEE. Keep in mind the three reasons. One is 

disaggregation of data. One is to protect the privacy of the students. And the other is to make sure we give special help to those 

schools who really are not performing as they should. Keep those 

three objectives in mind. 

Thank you very much. 

Mr. OSBORNE. Thank you, Mr. Kildee. 

Mr. Marchant. 

Mr. MARCHANT. Thank you, Mr. Chairman. 

I would like to focus with Dr. Kuhlman on specifically the students with disabilities. My child is a student that went through 12 

years of public school considered to be disabled. And can you discuss with me, over on your chart, it looks like—let me just ask you 

a few questions. In 2003 and 2004, under the reading and language 

arts, you had 17 students classified as students with disabilities. 

And then in 2005, 23. And then in 2006, 26. Was that an actual 

jump in the student population of students with disabilities, or was 

that reclassification of other students? 

Dr. KUHLMAN. No, it was an increase over those 3 years. 

Mr. MARCHANT. And do you find, does your State give any kind 

of a waiver for students with disabilities in their testing? 

Dr. KUHLMAN. There is no waiver on testing the students that 

we have. We have students who are mildly disabled with speech 

and language disorders, learning disabilities, behavior disorders 

and health impairments in that group. And all of our special ed 

students are tested. There is no waiver. 

Mr. MARCHANT. So they are not taken out of the equation in any 

way? 

Dr. KUHLMAN. No. Now, we are not legally mandated under No 

Child Left Behind to make AYP with the group because it is such 

a small subgroup, just the topic we are talking about today. But 

at our school, we took that seriously. When we saw our other two 

subgroups—and you can see on the same chart—performing in 

2003 and 204 in the 90 percent proficiency level, and special ed 

students down in the 40’s and 50’s, that is where we said we were 

grateful for the reporting because while we analyze data on an individual student-by-student basis, we didn’t group students, so the 

fact that data were reported for those students was helpful to us 

in knowing that we really needed to make some changes and focus 

on improvements for our students with disabilities. 

I was a special ed teacher, so it was important to me that at our 

school we not have significant gaps with students with disabilities. 

Mr. MARCHANT. In Texas, we have had a lot of situations where 

many of our schools that for years were rated exemplary in this 

last testing cycle lost their rating primarily because they included, 

they took more of an inclusive testing policy and then, when they 

were stripped of their exemplary status, went back and appealed 

39

to the State. And their appeal basically was based largely on the 

fact that they had included too many disabled students. And the 

State didn’t allow them to pull those students back out and restore 

their exemplary status. Would you say that is generally the policy 

with most States? 

This is for the panel. 

Are most States moving toward Dr. Kuhlman’s model, or are 

most States living with what they are able to do as far as that 

goes? 

Mr. Peiffer. 

Mr. PEIFFER. I can only speak for Maryland. We work very hard 

to make sure that all of our students with disabilities are included 

in the accountability and assessment program. We have an assessment for the lowest 1 percent of students who are very seriously 

disabled and alternative assessment. We are waiting for guidance 

from the U.S. Department of Education on another assessment that 

will be called a modified assessment that will be more in tune to 

the needs of the next 2 percent of students above that. 

And I think the key with all of the limited English students and 

the special education students both, if they are they are to be included in adequate yearly progress, we need to make sure that the 

tests we have in place for those students are a fair and accurate 

measure of what they know and are able to do. But we are very 

much committed to making sure that those students are included. 

Mr. MARCHANT. And, Mr. Simon, what is the goal of the Department of Education along these lines? 

Mr. SIMON. This particular issue is probably if not the single 

most issue that is discussed and considered most by the States, it 

is in the top two. And we have done a lot. I think States are really 

moving to get students with disabilities included appropriately in 

assessment and in teaching. Many times, they don’t know what to 

do. And so we intend, in addition to releasing rules and regulations, we intend to release technical assistance to help States understand how we can identify these students properly, how to test 

them properly, how to teach them properly. 

Mr. MARCHANT. Thank you, Mr. Chairman. 

Mr. OSBORNE. Thank you, Mr. Marchant. 

Mr. Andrews. 

Mr. ANDREWS. Thank you, Mr. Chairman. 

I would like to thank the panel and thank the chairman for the 

hearing. I think it is imperative that the result of the No Child 

Left Behind be that we find more creative ways to educate students, not more creative ways to create records to show that we are 

educating students when we are not. 

And I think that this size of the N issue sounds very arcane, but 

it isn’t. It is very fundamental and very serious about whether we 

are going to take these obligations seriously. And I am glad we are 

having this hearing. 

There is another part of this equation, and it is whether or not 

the resources that we are sending from the Federal taxpayers are 

being properly applied to meeting the needs of the children in the 

schools, and I wanted to ask Secretary Simons some questions 

about some issues I called to the attention of Secretary Spellings 

in April. 

40

First, I want to say, we have had some excellent responses from 

Secretary Spellings’ legislative staff. Ms. West in particular has 

been quite attentive in getting back to us. But we still haven’t gotten to the bottom of the question I asked Mr. Secretary, and here 

is what it is: Based on news reports, which of course means that 

it may or may not be true, but based on news reports, there were—

the following three issues were called to my attention. In the Columbus, Ohio, public schools, we had No Child Left Behind money 

spent on cell phones, $23,000 worth; a $1.2 million increase in 

overtime spending; and we had $47,000 spent on furniture the district could not locate when it was audited. 

In Cottonwood, Arizona, $1.1 million was spent over a 13-month 

period on after-school programs. I am told that programs of this 

nature typically are very low budget, cost about $300 per student. 

This one averaged out to $4,900 per student. 

And in New Jersey, in my own State, in the city of Elizabeth, 

which has six schools on the needs improvement list, it is reported 

that the school board spent $600,000 in a buyout for a school administrator, some of which may have come from No Child Left Behind money, and then over $100,000 on television advertising in a 

dispute with the city government over where to build a new school 

under the State’s school construction program, a political dispute 

about where the school ought to be built. 

I don’t know if these things are true. But I would like to know 

if they are true. And more importantly, I would like to know what 

strategy the Department has to focus on this. 

And I will tell you why I think this is particularly important. The 

principle change between No Child Left Behind and the prevailing 

law was that we were going to tether this Federal money to very 

specific performance standards and objectives. When Title I started, as you know, we said, here, here is a sum of money, do good 

things with it. And then, in 2000, the Goals 2000 legislation—I 

guess it was prior to that—we said, do good things with the money, 

here is what we would like you to accomplish. And when that was 

not accomplished, in No Child Left Behind we said, here is a large 

sum of money, here is what you need to accomplish, here is how 

we are going to measure your achievement, and here are the series 

of remedial actions you must take in order to make these changes 

happen, which is the whole genesis of AYP. 

You can’t really measure that progress unless you are sure the 

money is going to the things that it ought to go to, and I got to 

tell you, not only are children in these districts being cheated when 

they are not being counted, but they are also being cheated when 

money the Federal taxpayers are sending for after-school programs 

and reading tutors and preschool and summer school are being 

spent on cell phones and political advertising campaigns and furniture that can’t be found. 

So what are we doing about that? 

Mr. SIMON. Yes, sir. Thank you. 

And we did receive your letter, and quite frankly, we have had 

a number of individuals working on that. Those audits that you referenced were not a result of our audits. So we are trying to track 

down who did the audits, the source of their information and then 

where that information goes. 

41

We audit from the Department of Education through Title I. We 

audit States and then, within States, selected school districts. And 

we have never pretended to audit every school district in the 

United States. So, short of that, we work with the States. 

Now that having been said, every individual district, I am sure 

this is true in every State, it certainly is in my State, has to do 

an annual audit, which is, I am assuming that is where this information was found. Part of an annual audit at the district level includes auditing Federal funds. That information generally is sent 

to the State department for the State department to look at. It is 

also sent to legislative committees to investigate. I know, many 

times again in my State, there were numerous occasions where superintendents were called before legislative committees to talk 

about audits of Federal funds as well as State funds. 

If we determine through whatever source that there is a miss, it 

has been an abuse of Federal funds, and certainly we get involved 

in that. We will work through the State department in conjunction 

with them to see what is necessary, if the facts are there, if they 

are true and then how we might go about recovering those funds. 

We just haven’t gotten to the bottom, totally, of everything you 

have asked us to do, but we are certainly pursuing that. 

Mr. ANDREWS. If I may, can you tell me when we will have an 

answer? 

Mr. SIMON. Sir, I can’t tell you for sure. But I will get an answer 

to you this afternoon. I have not been working directly on that. But 

my staff has. 

Mr. ANDREWS. I want to make it very clear, your staff has been 

very responsive to this. I know my time is up. I want to say one 

more thing. This is more than just about these three districts. See, 

my experience in local government has been that Federal money is 

treated as a little freer than money raised from the taxpayers that 

are sitting right in front of you. And there is a tendency for districts to, certainly not all districts, but districts that have a bent 

toward this kind of carelessness to begin with to be even more 

careless with Federal money. 

And frankly, the ability of State education departments varies. 

There are some that are very competent and very thorough in their 

audits, and there are others less thorough. But every single one of 

those dollars that is being spent in Arizona or Ohio or New Jersey 

is being raised by my taxpayers in New Jersey, Mr. Kildee’s taxpayers in Michigan, Mr. Osborne’s taxpayers in Nebraska. And we 

think we have a very special obligation, not only to the taxpayers 

but to the children who are being cheated if these allegations are 

true. I thank you. 

Mr. OSBORNE. I thank the gentleman. 

Ms. Woolsey. 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

It is good to hear that every single member up here agrees that 

it is important for schools and parents and the public to have access to disaggregated data on student achievement. 

What I would like to ask each of you, and starting at the with 

Mr. Brittain, is, tell me one of or tell me the most important way 

that this information can be used to help students? Particularly the 

42

students that aren’t measuring up, meeting their AYP, what would 

be the most important way you have used this information? 

Mr. BRITTAIN. I would use the information that you provide them 

with special services to help them meet their level of achievement, 

their level of progress and ultimately to find the highest level of 

their proficiency. I believe that is the most important way that, 

particularly if you are talking about the excluded students, they 

are not being helped. 

And from a civil rights perspective, I think that the parents and 

the students deserve to be informed of all of their rights under No 

Child Left Behind. And certainly, they should be informed that, if 

their school has finally been designated by the long process of not 

performing, they should be entitled to their transfer right under 

this. 

One of the proposals we make, Congresslady Woolsey, is that, for 

the excluded students who are not counted in the N factor, they 

should receive their remedial measures no less. That would go to 

Congressman Miller’s point of view that they are being denied their 

rights of No Child Left Behind as well as being excluded from the 

data. So we would say as one fix that if you are going to exclude 

them from the data, you know who they are, you have their testing 

information, you still go and provide them with their remedial 

right. 

Dr. KUHLMAN. At Centennial Place, we have made AYP for 6 

consecutive years, so we haven’t been subject to any of the sanctions under No Child Left Behind. But we have found the data and 

the disaggregation of data that is presented to us to be very helpful 

in informing instruction, in planning additional resources for students that need additional help, just as I explained with the students who have disabilities. We were really able to focus on intensifying collaboration among teachers and parents, and really narrowing the scope of our curriculum and standards and going deeper 

with those kids in the program so that they were able to perform 

more satisfactorily. So I think that the actual presentation of data 

really helps schools zero in, whether they are subject to sanctions 

or not, in terms of making substantive improvements in the instructional process. 

Ms. WOOLSEY. Dr. Peiffer. 

Mr. PEIFFER. Disaggregated data is used pervasively throughout 

Maryland from the school system on down. Of course, at the State 

level, we look at that to help us determine whether we are putting 

our efforts in the right systems and groups and so on. 

But at the school system level, quite frequently, they are looking 

at the principal assignments to make sure that they are going 

into—the right principal is going into the right schools. I met with 

the assistant superintendents for instruction from our 24 school 

systems back in March. And they talked at great length about how 

they are working with principals so they are smarter about looking 

at the data so they can make good instruction for students. So they 

are trying to do it, institutionalize that approach. 

So if you think about, for most of our schools, they know that 

AYP is important. They know the performance of those individual 

students is important. So it really overrides almost every other factor in terms of making decisions at the school and system level. 

43

Ms. WOOLSEY. Dr. Simon, from your perspective? 

Mr. SIMON. I have to agree, when the individual test result and 

individual teaching data about those kids gets into the hands of the 

individual teacher to help that child, regardless of whether that 

child is in subgroup 1, 2 or 3, it all goes back to what that teacher 

knows about that child and what he or she is able to do with that 

child in the classroom and to be able to focus what that child 

needs. 

Ms. WOOLSEY. I would like to ask you, the President has repeatedly underfunded No Child Left Behind in his budget. Does the administration and does the Department think that we don’t need 

any additional funding for these services? 

Mr. SIMON. If you look back on the history of No Child Left Behind, there are record amounts of Federal funds that have gone 

into assisting schools and teachers. Teachers become better teachers. Schools become better schools. We believe that money has been 

well spent. It is showing up in increased achievement. 

Ms. WOOLSEY. So you think that is enough. I mean, we don’t 

need any more than what is on the table now? 

Mr. SIMON. I think the Federal Government has been very generous in its funding of education and being good partners with 

States. 

Ms. WOOLSEY. Well, I disagree with you on that one. 

Thank you. 

Mr. OSBORNE. Thank you, Ms. Woolsey. 

Ms. McCollum. 

Ms. MCCOLLUM OF MINNESOTA. Thank you, Mr. Chairman. 

I was just going to comment, a person who assisted me on my 

education policy is a Minnesota State auditor. Just in complying in 

1 year, we spent $19 million getting the tests all straightened out 

for No Child Left Behind, so I was wondering if the State of Minnesota had received $19 million from the Federal Government to 

offset that, and I think the answer is, no. 

So any achievement we have done in Minnesota, I would say that 

we have done it with Minnesota’s taxpayers’ dollars. 

I am glad we are having this discussion because I am very concerned about, what are we measuring? 

Every State has its own standard. You say you are going to look 

at the national standard, the NAEP, and juggle some formula and 

bring the schools in or the States in and say, well, maybe you 

should be changing your standards here or there so we have something that we can measure. 

All the cell sizes are different. 

And we need to be doing much better than this. We are all adults 

here in the room. We all know when we show up to work, and we 

are measured on performance, or when we purchase something. We 

don’t let every State set standard performance for cars. We know, 

when we purchase a car, how reliable it is going to be, what the 

gas mileage is going to be like. But yet when it comes to our 

schools, we seem to think that we can do whatever. 

Now you can make your point for the Department that it is a 

State’s right to provide an education. And I agree with that. It is 

in Minnesota’s State constitution. But what is happening right now 

is, because Minnesota has its standards, and you point out that 

44

some States have higher standards than others in some of the testimony, then nationally, when we go to rank these schools and they 

are up next to each other, there isn’t a big asterisk next to it saying, oh and by the way, these States did lower the bar, and they 

still have students that aren’t making adequate yearly progress. 

And those students who aren’t making adequate yearly progress 

might be the students that are in, especially in minority categories, 

scoring at the top of a bar in another State. So what have we really 

done for those children? 

If this is to be a Federal program, then I think we need to move 

toward a standard Federal system in measuring our outcomes here. 

I say that because we have—we are a very mobile society. We 

have Hispanic immigrant students that we are going to be trying 

to measure. That is pointed out in testimony. And so I would like 

a little more of a discussion about how do we get to one measuring 

bar. And then, just to point out, if we have special ed students that 

aren’t making adequate yearly progress, shame on the Federal 

Government for not funding special ed for how many years? We 

have failed to do that. What makes us think we are going to be 

more, have more success with No Child Left Behind without the 

appropriate funding for that? 

And then I am just curious, when the Department looks at African-American students right now, black students, how are refugees 

being counted? And what are we going to do about school districts 

that have a lot of, a large refugee population, that are not only 

dealing with language, but they are dealing with culture shock 

and, in Minnesota, even with weather shock in the winter. 

So how, especially in my State, when Asian and black students 

are counted, how are we counting? And what is the Department 

doing for refugee students and making sure that, as our country 

takes in these refugees, that our school districts gets the funding 

that they need to make these refugees successful? 

Mr. SIMON. In terms of the last issue you raised, limited English 

proficient students, that is a subcategory that is required as a subgroup both for reporting and accountability. We work with the 

schools. We have a specific office, Office of English Language Acquisition, that works with States. There are regulations in place 

that talk to a State about how these students can be treated for 

adequate yearly progress, schools are given, under proposed regs 

that being written now, are basically being given a year for those 

students to come in where they are not held accountable for assessments. But there are requirements for those children to be tested 

for their limited English language proficiency. There are opportunities with assessment and teaching for those students to hopefully 

exit that category as soon as they can properly participate in testing. 

We give them credit for moving students out of those categories. 

Our objective is to get those students into a regular classroom as 

soon as possible. We want to give States credit for their doing that. 

So and we are continuing to work with States to improve assessment of these children. That has been one of the big concerns that 

States have had is how they test these children to really understand the level of their language proficiency and their ability to 

participate in English and math exams. And so it is a continuous 

45

thing we are working on. I think, again, we are smarter today than 

we were 3 years ago. I think those children are being better served 

than they were 3 years ago. 

Mr. MARCHANT [presiding]. Mrs. McCarthy. 

Mrs. MCCARTHY. Thank you, sir. I thank everybody for their testimony. I think it has been really interesting for the majority of us. 

Dr. Kuhlman, I just want to ask a quick question, with the resources that you receive, not only from the Federal Government 

and from your private corporations that are in a partnership with 

you, then on the State level, the amount of money that you are getting, would you say that you are actually receiving more money for 

your school than maybe the average minority school would be getting? 

Dr. KUHLMAN. No, we are funded under the same formula that 

all Atlanta public schools are funded. We actually have a lower free 

and reduced lunch rate than the average Atlanta public school, so 

we get a little bit, proportionately, less in Title I. 

And our resources in the community are in kind resources, not 

dollars. But I will say that the value is enormous. And that would 

be my statement, that all kids need these resources that our kids 

have been so able to benefit from, and encouragement to community members and organizations to get involved in their public 

school and to help and to public schools to reach out and bring the 

community into the schools so that they can help. 

Mrs. MCCARTHY. Well, I thank you, and it sounds like your 

school has the winning formula. With that, I would like to yield the 

balance of my time to Mr. Miller. 

Mr. MILLER. Thank you very much, and if I might just thank the 

gentleman for yielding. I would like to pick up on the conversation 

with Mr. Kildee. 

We have tried to be very supportive of the Secretary as the Secretary has tried to walk through the competing demands from the 

law of the States and everybody involved in it. But, and I recognize 

that the Secretary inherited some of these N number decisions that 

were made, and that starts to be the benchmark from which you 

then have to work from. 

But I think if we are right in that this determination, as presented by Mr. Brittain, is about whether or not students will or 

will not get the services that are required and provided for under 

Federal law, that the only way out of this is to really put together 

an independent objective technical committee to look at this. And 

I would invite the civil rights community into that because if this 

is accurate—and I think it is accurate—it does go to whether or not 

these children will have an opportunity to be proficient or not. 

But I think that, as you were suggesting that you are trying to 

do something like that, I don’t think this can be a case-by-case 

basis any longer because, if nothing else, for the moment, I think 

Maryland just knocks that out of the box. And again, I am not suggesting that that is the answer. But I think that—I would hope 

that the Secretary would think long and hard about putting together that kind of technical committee to decide what makes 

sense and what doesn’t make sense and what can be justified here 

when you recognize that it will end up essentially being about 

46

whether significant numbers of students are denied access to those 

resources. 

So I just want to say that. 

I was also looking at an old friend of mine, Hayes Mizell, who 

has been involved in these issues for some time back in 2003, sent 

me a speech that he gave in Maryland to the Howard County 

Schools’ Faulkner Ridge Staff Development Center in Columbia. 

And in that he was talking, he was trying to get people to think 

anew with No Child Left Behind. But he went back to a very old 

point, and he quoted a talk about Brown v. Board of Education; he 

quoted, Louisiana’s abysmal performance on African-American students prompted a member of the State board of education of Louisiana to say, we will never reach our goals as a State if we don’t 

improve the performance of our poor and black students. And if we 

don’t measure it, then you don’t count it. And if you don’t count it, 

then you don’t pay attention. And if you don’t pay attention, then 

you don’t fix it. 

And I want to say that I probably heard that from the President 

of the United States a dozen times while we were putting together 

No Child Left Behind. And the Secretary has said it I think many, 

many more times than that. When people want to challenge standards and accountability and all that flows from that. And my worry 

is—I am not suggesting intentionally—but we have created a group 

of students here who may very well not be counted and therefore 

may not be paid attention to and therefore may not receive the 

services. 

So, I would hope that your—I don’t want to hold you to saying 

this is what you are going to do, but I would hope that this would 

blossom into a really independent technical look at how you develop what may be a rational decision that in some cases some of 

these school scores may not need to count, and if that is even the 

case, how do you still then make sure that services get to those 

children that the law says that they must get? And I think it is 

a two-part question. 

Hopefully there won’t be many in the second part of the question 

if we do the N number right. But I think it has to be there as a 

fall back, as Mr. Brittain has suggested, because we know, for a 

child to lose this opportunity in just a school-year period of time, 

the problems start to cascade on themselves. That is why we have 

testing at this level and we have the development of these scores 

and we have this information, this disaggregated data, so we can 

get in there and deal with these problems in a realtime basis. So 

I just wanted to hopefully expand a little bit on that question by 

Mr. Kildee and your response to it and my suggestion to your response to it. Thank you. 

Thank you for yielding. 

Mr. MARCHANT. Mrs. Davis. 

Mrs. DAVIS OF CALIFORNIA. Thank you all for being here. 

I wanted to raise one issue that we haven’t talked about so much 

in the potential loopholes that are out there. Could you please address the issues of when students are counted, as per their, how 

long they have been in the school? And it is my understanding that 

schools don’t necessarily have to count for AYP until they have 

been in the school for half a year, some schools almost a full year. 

47

What is your feeling about that? Is that something that we ought 

to be addressing? And how do we sort that out if in fact not only 

are students not being counted if the N size is too small, but our 

transfer students who move around a great deal. Certainly our students who are on military bases move around a great deal, and 

generally speaking, children who have fewer advantages move 

around more than children who are more stable. So how do we reconcile all that? What do you think we should be doing? 

Mr. SIMON. The accountability from No Child Left Behind is at 

the school level. So when we talk about a school needing an improvement, we want to say that that school is unable for whatever 

reason to get their children to grade level. So part of the protection, 

if you will, or the fairness to the school is that they be judged on 

children they have had an opportunity to teach. 

And so the law provides that a child that is held for adequate 

yearly progressive purposes must have been in that school for a full 

academic year. Now that is defined somewhat by the States. Some 

may start their full academic year October one, some may start it 

September one. But basically, the child must be in that school a 

year. 

Now a district, however, if a child moves from school A to school 

B within a district, the district is held accountable if that child has 

been in the district a year even though the school might not be, if 

he was in one school 3 months and another school 6 months, the 

schools may not be held accountable, but the districts would be. 

Similarly, within a State, if a child moves within a State, the State 

is responsible. 

That having been said, I go back to Principal Kuhlman and what 

they are doing in her school. It doesn’t matter whether the child 

has been there 2 days or 2 years or 2 months. They pay attention 

to what the child knows and does not know, because they look at 

the data that child brings with them, they look at data they accumulate on that child when they are in school. That is what is going 

to teach kids. Accountability is important, and it will help direct 

funds to schools that need to be helped. But all that accountability 

is worthless if the classroom teacher doesn’t have the tools and the 

knowledge and the desire to really pay attention and help that kid. 

That is where the real work gets done. 

Mrs. DAVIS OF CALIFORNIA. I would agree with you, but I am just 

wondering, again, in a dialog fashion, if in fact the schools are not 

truly held accountable for those children who move a lot, then 

doesn’t that send a different message to them? I know that, years 

ago, we did disaggregate and we did believe that even though a 

school might have a transiency rate of 150 percent in terms of 

turnover, the school was always accountable for those kids. And I 

hear what you are saying, that the teachers still have that responsibility. But I am just wondering whether we ought to look at that, 

whether that is somehow giving a pass for those youngsters. 

Dr. Kuhlman. 

Dr. KUHLMAN. I would say that our superintendent in Atlanta 

public schools agrees with you. We have targets that are established for us, school by school. And we include every child in those 

targets. If they arrive the day of the test, they are counted in our 

accountability system. So sometimes it is, you know, you take a litVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
48

tle hurt on that. And I always think that in terms of the real substance of our instruction, those children that have been there for 

a full academic year have had the opportunity to benefit our program. But at the end of the day, we are accountable for all of the 

students. 

Mrs. DAVIS OF CALIFORNIA. Should that be a separate N size, 

students who have been at the school for half a year opposed to a 

full year, should they be pulled out in some way? 

Dr. KUHLMAN. It would be interesting to look at them separately, 

and we do that. And frankly, we don’t have a lot of difference. Now 

I think that—I know that would vary from school to school, too. 

Mrs. DAVIS OF CALIFORNIA. When it comes to military students, 

do you think that in any way those scores should be looked at any 

differently? Is there any interest in doing that and enough studies 

to indicate that, in fact, there may be services beyond that impact 

that the young people are not receiving? 

Mr. SIMON. I had the privilege of visiting a military school in 

Germany a few weeks ago. And the military schools overseas are 

not under No Child left Behind. The law doesn’t apply to them. 

That have been having been said, they have adopted voluntarily 

many of the provisions of No Child Left Behind. And I can tell you, 

we need to model many of our schools after what the military 

schools do for their children. And it starts with the key for them 

is the family being involved. As the commander of the base we 

were at said, when a child gets in trouble at school, it is not just 

the child; the father and the mother whoever is in the military is 

brought before the commanding officer, and the child is, their 

progress is talked about. Some good things, and they are certainly 

interested in maintaining a consistency as their children move from 

school to school. 

Mrs. DAVIS OF CALIFORNIA. Thank you. I appreciate that. My 

time is up. 

I really was asking more about those children who are identified 

but are not in military schools, are in the regular school system, 

where they are receiving impact aid and there may be some additional issues regarding accurate testing. Thank you very much, I 

appreciate it. 

Mr. MARCHANT. Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Secretary Simon, is there any technical difficulty to collecting all 

of the data without any regard to N size? 

Mr. SIMON. I am not sure if I fully understand your question, but 

there is a problem in collecting data. States are getting better. 

When we began No Child Left Behind, the data collection systems 

in many of our States were very inadequate to meet the reporting 

requirements of the law. 

Mr. SCOTT. I am not talking about reporting. I am talking about 

just collecting the data. Then, you could decide what to report, is 

the second question, but you can collect the data regardless of N 

size, isn’t that right? 

Mr. SIMON. Oh, sure, now, but again, the format of the data, the 

quality of the data is a lot better today than it was 3 years ago, 

and so we are beginning to collect more and more information. We 

know a whole lot more now. 

49

Mr. SCOTT. One of the problems is, if you are under the level 

now, the N size in each school, you could have thousands of children in a school district but not enough in any school, and none 

of them get counted; isn’t that right? 

Mr. SIMON. Yes. 

Mr. SCOTT. Is there any rationale or basis for having a different 

N size for one school district or one State than another? 

Mr. SIMON. Again, we believe there is. And that is what we have 

tried to exercise since the beginning of No Child Left Behind by 

taking into account a number of factors. But we haven’t set one N 

size for everybody. 

Mr. SCOTT. Do you have those factors listed somewhere? 

Mr. SIMON. Yes, sir. 

Mr. SCOTT. If you could supply that to the committee. 

Now the testing is one thing. The farmers tell us you don’t fatten 

the pig by weighing the pig. We want to know what happens after 

the test is given. And what do you do with information? Now if you 

know in a district, in a school district, that there are a number of 

children failing but not the critical mass in each school, it is my 

understanding that all of the sanctions are school-based not schooldistrict-based? 

Mr. SIMON. There are sanctions at the school and district level. 

Mr. SCOTT. Now if you have say 200 students, none of whom 

have been counted in any particular school, who you have identified as that category as being left behind, are there services that 

could be provided for them? 

Mr. SIMON. Yes, sir. Also, those schools, if the individual schools, 

if the child is not counted at the individual school because of N 

size, very likely they are going to be counted at a district level. And 

if the district puts in an improvement, that also triggers funding 

and requirements that the district has to provide to the schools 

that got them there. 

Mr. SCOTT. So if you have one or two students in each school in 

a particular category, not enough in any school, then you can provide services to those students? 

Mr. SIMON. Yes, sir, and it would certainly behoove a district to 

do that because if the schools are not taken care of, then the district remains in improvement and the sanctions get quite intense. 

Mr. SCOTT. So you have a category where the district fails because a category of students fail, but no individual school is implicated? 

Mr. SIMON. Correct. 

Mr. SCOTT. Now, the other things that we can do with the data, 

has any—we want fully qualified teachers. The data could show 

that a particular teacher has a historic inability to teach certain 

categories of students. 

If you found that, would that jeopardize the teacher’s qualifications? 

Mr. SIMON. Not from a Federal perspective. We don’t get that detailed in a school’s business, but the whole issue of how to qualify 

teachers is one that is front and center of this issue, is also the line 

for States to get their teachers highly qualified. 

Mr. SCOTT. Would you encourage school districts to know if a 

teacher isn’t teaching, say, black students? 

50

Mr. SIMON. Absolutely, and they are required to report that. 

Mr. SCOTT. They are required to report that for a teacher? 

Mr. SIMON. For a school, the number of teachers and individual 

teachers, if a individual teacher is not highly qualified, the students of that teacher, the school is required to report that to the 

parent. 

Mr. SCOTT. Can you lose your highly qualified status if you are 

consistently failing to teach certain categories of students? 

Mr. SIMON. That would be a State’s obligation to do it. It is not 

a requirement from the Federal Government. We have a requirement that a teacher be highly qualified. Now once they are highly 

qualified, if they fail to perform, that is not something that we 

have ventured into very extensively. We do things to encourage 

that for those teachers not to be in there, but there is no penalty 

from the Federal Government at this point on that. 

Mr. SCOTT. Does the disaggregated data identify the students 

that are dropping out by district? 

Mr. SIMON. It is available particularly at the State and school 

district level. 

Mr. SCOTT. Could you say a word about how you, what standard 

you used to determine whether or not disabled students are passing? 

Mr. SIMON. Again, that goes back to the State’s standard. The 

Federal Government, we have some regulations regarding the numbers and types of special education students that can be counted 

as proficient. There are limits that are set by the Federal Government, but, ultimately, it is up to an individual State’s standards to 

a large degree. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. MARCHANT. Mr. Holt. 

Mr. HOLT. Thank you, Mr. Chairman. 

I thank the witnesses. You have been patient, but of course, this 

is really important. It gets to the heart of No Child Left Behind. 

You know, we would like to say that no child is left behind, really, 

no child. Of course, we don’t know if, in this school, there is five; 

and another school, there is 20; and another school, there is 50; 

and pretty soon, you have a couple of million students you don’t 

know who are being left behind. 

And it is not as some people have suggested a matter of mathematics or statistics. This is a philosophical point. And so a range 

between 5 and 200 is really not a mathematical decision. It is a 

choice that the school, that the State, the schools are making. 

What I would like to ask, Mr. Peiffer, is if, what would you say 

you have had to sacrifice in order to maintain this small N of 5? 

You can either, well, make the assessments, the testing easier, so 

you lower the bar, and you can make it that way. Or you are willing to tolerate more schools just not making, not being perceived 

as making adequate progress, being classified as adequate progress 

schools. 

What do you think a school system, or a State, gives up or has 

to give up to maintain as high of standards as you have? 

Mr. PEIFFER. With our local school system officials, I think there 

is a lot of fear that if we had a very small N size that there would 

be an inordinate number of schools identified as not making adeVerDate 0ct 09 2002 15:51 Oct 20, 2006 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 H:\DOCS\FC\6-13-06\28431.TXT EDUWK PsN: DICK
51

quate yearly progress. We had to work very, very hard over the 

first couple years with this law to try to help local school system 

officials and parents and others in what it really meant. So, ultimately, I don’t think we have had to give up anything. It is a combination of the N of 5; it has also been this competence interval 

statistic that gives this sense of fairness. And once we incorporated 

the two together, I think there has been a sense that it has been 

pretty fair. 

Again, I think I mentioned in my earlier comments that the Education Week report that came out in January, looking at the 2005 

AYP list, puts Maryland about in the middle of the country, about 

in or near the national average in terms of the number of schools 

that have made AYP. So I think it really hasn’t disadvantaged us 

in any way. But most importantly with our constituency and our 

advocates for students with disabilities and limited English proficient students and their various racial groups and their parents, 

I think they also feel their students are appearing in results and 

we are paying attention to them. So I think the advantage to that 

has been very important to us. 

Mr. HOLT. Do you think, Mr. Peiffer, if there were a national cap 

put on N, 30, 25, 50, you would still maintain 5? 

Mr. PEIFFER. I don’t see that there is a lot of interest right now 

in changing the N of 5, and it, strangely enough, I get approached 

in the grocery store by parents who seem to understand statistics 

enough that they understand the N of 5, so it has gotten to be a 

part of the culture with parents as well, so I think we are very 

comfortable with where it is. 

Mr. HOLT. And, if it were, if there were a national standard set, 

a cap, what difference would it make to a State like you that sets, 

well, this rather high bar or low N? 

Mr. PEIFFER. I am not quite sure how the standard would apply 

if it were higher than 5 and that were the standard applied elsewhere. I am not sure we would be—in other words, if that were the 

cap, that you needed to be under that certain figure, I think there 

would be a lot of pressure on the part of our local school systems 

to go to a higher number if you will. 

Mr. HOLT. OK. Thank you. 

I thank the witnesses. 

I thank you, Mr. Chairman. 

Mr. MARCHANT. I would like to thank the witnesses for their 

time and testimony, and the witnesses and the members for their 

participation today. It was a great panel. Thank you for bearing 

with us during our votes and the business of the House. If there 

is no further business, the committee stands adjourned. 

[Whereupon, at 1:14 p.m., the committee was adjourned.]

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