No Child Left Behind for the Teachers Left Behind: Returning Education to the Educators

• Author: Leah A. Rinfret
• Position: J.D. Candidate, Capital University Law School, 2007.
• Pages: 281-301

Page 281

The author would like to thank the teachers from the West Holmes School District who provided invaluable observations for use in this Comment. Professors Mark Brown and Erwin Chemerinsky offered guidance and support throughout the development of this Comment.

Introduction

In 2002, America's teachers faced a choice: comply or defy. Compliance meant time and money.¹ Defiance meant embarrassment² and potential unemployment.³ This "choice" arose when President George W. Bush supplemented the Elementary and Secondary Education Act by signing the No Child Left Behind Act (NCLBA),⁴ which has teachers throughout the country concerned about the future of education.⁵ Even though the goal of the NCLBA-nationwide proficiency in mathematics, reading, and science⁶-is honorable, the path taken to achieve this goal infringes upon dual sovereignty and forces state-run educational institutions to implement a federal education program.⁷ Page 282

Since the codification of the NCLBA, the future of education has found itself in the hands of the legal system, as court battles over the NCLBA emerge throughout the United States to determine its validity.⁸Educators have an interest in these court decisions because numerous provisions in the NCLBA changed the way teachers operate.⁹ This Comment analyzes the constitutional issues resulting from the enactment of the NCLBA, which uncovers the legal arguments that favor allowing educators to regain control of their classrooms. Even though worthwhile legal challenges need to be brought by the states and not by individual educators, this Comment uses teachers' insights to identify the benefits of ousting the NCLBA.

To return education to the educators, the NCLBA must be attacked on two fronts: the limitations on congressional spending power in Article I, Section Eight, of the United States Constitution, and the dual sovereignty requirement of the Tenth Amendment. This Comment is divided into three parts. Part I examines the NCLBA and discusses some key provisions. Part II sets forth the constitutional issues that result from the relationship between the NCLBA and states-run educational institutions. Then, Part III looks at the federal government's response to the attacks against the NCLBA and offers promising alternatives to the current situation.

I Background: the Text and Operation

In effect only since 2002, the overall impact of the NCLBA on education has yet to unfold. This Part presents the major ways the NCLBA affects teachers, parents, students, and school operations. As this Part will show, some of the provisions are very reasonable on paper. Yet, the language of the NCLBA details a federal education program that states must follow to receive federal funds for education, which gives rise to the legal issues examined in Part II of this Comment.

A Teachers

To comply with the NCLBA, teachers must go through two major changes: how they are educated and how they educate. Teachers who teach "core subjects"-English, reading, language arts, mathematics, Page 283 science, foreign languages, civics and government, economics, arts, history, and geography-must undergo additional education to be considered "highly qualified" in those subjects.¹⁰ Specific requirements vary with teacher experience and grade level, but the highly qualified standard generally requires: (1) a bachelor's degree, (2) state certification or licensure, and (3) subject area knowledge for each core subject.¹¹ To satisfy the third requirement, teachers must pass "a rigorous State academic subject test in each of the academic subjects in which the teacher teaches."¹² The first two requirements of the NCLBA have avoided significant legal action because the majority of states already require a bachelor's degree and state certification to teach.¹³ Conversely, the third requirement-subject area knowledge for each core subject taught-poses a problem for many schools, specifically those located in rural areas and small towns.

The highly qualified standard applies to all teachers and does not take into account the size or location of the school.¹⁴ Elementary school teachers must pass a state test to demonstrate "subject knowledge and teaching skills in reading, writing, mathematics, and other areas of basic elementary school curriculum."¹⁵ Middle school and secondary school teachers must demonstrate "a high level of competency in each of the academic subjects" they teach,¹⁶ which can be achieved one of the following ways: passing a rigorous academic test in each subject area;¹⁷completing an academic major, a graduate degree, or coursework equivalent to an undergraduate degree; or obtaining advanced certification Page 284 in each area taught.¹⁸ This provision of the NCLBA will undoubtedly force teachers to spend time and money to retain their jobs.¹⁹

The highly qualified standard punishes small and rural schools in particular.²⁰ For example, Hiland High School, located in the small farming community of Berlin, Ohio, has just over 350 students.²¹ With such a small student body, teachers typically teach multiple courses that are based on the same subject.²² So a science teacher might teach chemistry and physics, a history teacher might teach geography and government, and a math teacher might teach algebra and geometry. Under the highly qualified standard, if a Hiland science teacher teaches chemistry and physics, then the teacher must be highly qualified in both subjects.²³Thus, either the current teachers must meet the highly qualified standard for each core subject they teach, or Hiland must hire additional teachers for each core subject offered.²⁴ Hiland is one of many schools that must confront this problem: forty-nine percent of the nation's 80,700 public schools are located in rural areas.²⁵

Teachers must also change the way they educate to comply with the NCLBA. The NCLBA requires teachers to issue standardized tests to Page 285 measure students' academic progress and achievement.²⁶ The testing requirement focuses on the three fundamental subjects taught in schools- mathematics, reading or language arts, and science.²⁷ Beginning in the 2005-2006 school year, schools are required to test students in grades three through twelve in at least math and reading.²⁸ Starting in the 2007- 2008 school year, schools must incorporate science into the tests.²⁹ As a result of the testing requirement, teachers must replace personal lesson plans with uniform lesson plans to ensure higher passage rates on exams.³⁰

The NCLBA states that the goal of testing is to "measure the achievement of students" against "student academic achievement standards" set by individual states.³¹ Opinions regarding the benefits and fallbacks of testing requirements are varied,³² but schools must meet these requirements to receive federal funds.³³ Students still have some time to meet the testing standards, but teachers cannot ease into new lesson plans: the NCLBA "aims to have all students, regardless of poverty, ethnicity or disability, reading and doing math well by 2014."³⁴

B Parents and Students

The NCLBA gives parents and students a great deal of power to make decisions about education. Schools must incorporate parents into the Page 286 decisionmaking process that creates school policy.³⁵ Under the NCLBA, schools must: (1) include parents in the overall planning at the district and school levels, (2) draft written policies on parent involvement at the district and the school levels, (3) conduct annual meetings with parents concerning school issues, (4) offer parents training on education, (5) coordinate parent involvement strategies among federal education programs, and (6) evaluate and revise strategies adopted for coordinating parent involvement among federal education programs.³⁶ This provision holds schools accountable for making sure that parents are involved in the education of their children.

The NCLBA also guarantees annual notification to parents-deemed parents' "right-to-know"-of the qualifications of teachers.³⁷ This empowers parents to request and receive information regarding the professional qualifications of teachers, such as college education, state certification, and whether a teacher is teaching under emergency or other provisional status.³⁸ The right-to-know provision seems to offer parents some reassurance that local school teachers are qualified to teach their children.

Additionally, schools must meet the benchmarks set by the NCLBA or students will be allowed to transfer, and the school will have to restructure its operations. When a school is in a low performing category and fails to make adequate yearly progress³⁹ for two consecutive years, the school is termed as "needing improvement," and it must develop a two-year turn around plan.⁴⁰ Students attending schools that maintain failing status for two consecutive years may transfer.⁴¹ A school falls to "school Page 287 improvement" status after failing to make adequate yearly progress for three consecutive years.⁴² At this stage, all students can transfer and students from low-income families are eligible for tutoring or remedial classes.⁴³ When a school fails to make adequate yearly progress for four consecutive years, the school must implement a "corrective action" plan, which requires the school to adopt one of six prescribed actions, including "replac[ing] the school staff who are relevant to the failure to make adequate yearly progress" or implementing a new curriculum.⁴⁴ When a school fails to make adequate yearly...