The Importance of Negotiated Rulemaking to the No Child Left Behind Act

• Publication year: 2021

85 Nebraska L. Rev. 1015. The Importance of Negotiated Rulemaking to the No Child Left Behind Act

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Danielle Holley-Walker*

The Importance of Negotiated Rulemaking to the No Child Left Behind Act

TABLE OF CONTENTS

I. NCLB--A Substantive Overview .................................. 1019 R
A. Academic Standards, Assessments, and
Accountability Under NCLB .................................. 1019 R
1. Academic Standards ...................................... 1019 R
2. Assessments ............................................. 1020 R
3. Accountability .......................................... 1021 R
B. Dominant Substantive Critiques of NCLB ..................... 1023 R
1. NCLB Burdens on State Resources ......................... 1024 R
2. NCLB as Testocracy ...................................... 1026 R
3. Impact on Minority and Disabled Students ................ 1028 R
II. Procedural Overview of NCLB ................................... 1030 R
A. Negotiated Rulemaking Under NCLB ........................... 1031 R
1. Standards ............................................... 1032 R
2. Assessments ............................................. 1032 R
3. Accountability .......................................... 1033 R
B. Adequate Yearly Progress ................................... 1034 R
III. The Goals and Purposes of Negotiated Rulemaking ............... 1035 R
A. Harter's Negotiated Rulemaking ............................. 1035 R
B. Negotiated Rulemaking Act of 1990 .......................... 1040 R
C. Critiques of Negotiated Rulemaking ......................... 1041 R
IV. Connecting the Substantive and Procedural Failings of
NCLB .......................................................... 1044 R
A. The DOE Fails to Comply with Negotiated
Rulemaking Requirements Under NCLB ......................... 1045 R

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B. The Impact of Inequitable Balance on the DOE's
Policy Choices ............................................. 1048 R
C. The DOE's Conduct in NCLB Negotiated
Rulemaking also Violates General Negotiated
Rulemaking Principles ...................................... 1052 R
V. Addressing the DOE's Failures in Implementation of
NCLB .......................................................... 1053 R
VI. Conclusion .................................................... 1057 R

The No Child Left Behind Act (NCLB) of 20011 is failing both in theory and execution. NCLB has been called "the most sweeping reform of the Elementary and Secondary Education Act since it was enacted in 1965" and was intended to "redefine the federal role in K-12 education so it can be used to improve the academic achievement of all American students."2 The stated purpose of NCLB is to "ensure that all children have a fair, equal and significant opportunity to obtain a high-quality education."3 Instead, NCLB is leading to increasing lawsuits between the states and the federal government, threatened school closures, and the potential collapse of entire city public school systems.

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This Article takes a new approach to examining the failure of NCLB. Much of the criticism of NCLB focuses on the Act's substantive requirements. NCLB attempts to achieve its goals by requiring states to adopt minimum proficiency levels for students in reading, math, and science. The Act then requires states to develop tests to assess student proficiency according to these standards.4 The Act also directs states to adopt teacher preparation and training methods, student curriculum, and student instructional materials designed to meet the academic standards set by the state.5 The Act professes to provide

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"greater decisionmaking authority and flexibility to schools and teachers in exchange for greater responsibility for student performance."6 Critics charge that these statutory provisions have many negative consequences, including an overreliance on standardized testing, a strain on state educational resources, and the further isolation of minority students and students with disabilities.

One aspect of NCLB that has been virtually ignored by its proponents and critics is the day-to-day administration of the Act. NCLB is administered by the Department of Education (DOE), and much of its actual impact on schools and students will be determined based on the regulations enacted by that agency.7 Congress has directed the DOE to use negotiated rulemaking as the procedure for adopting all regulations to implement the Act.8 This negotiated rulemaking procedure used by the DOE will prominently figure into the implementation of NCLB.

Negotiated rulemaking rose to prominence in the late 1980s and early 1990s as an alternative to the traditional notice and comment rulemaking procedure outlined in the Administrative Procedure Act.9 Negotiated rulemaking requires an agency to consult with interested parties before giving notice of a proposed regulation.10 Negotiated rulemaking has been championed as a means of decreasing the length of rulemaking proceedings and avoiding subsequent litigation.11 The agency attempts to build consensus among these interested parties prior to issuing a proposed rule. For example, when used to enact en

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vironmental regulations, a negotiated rulemaking committee will bring together the Environmental Protection Agency, environmentalist groups, and industry interests in order to come to a consensus on a proposed rule to implement an environmental statute.12 In the context of education, the interested parties likely to participate in NCLB negotiated rulemakings with the DOE are representatives of state education agencies, local school board officials, school administrators, teachers, parents, and students.

This Article argues that the substantive failures of NCLB are magnified and exacerbated in the negotiated rulemaking process. Negotiated rulemaking offers the promise of collaboration between the DOE, state education officials, local school boards, teachers, parents, and students to achieve the goals of NCLB. Instead, the voices of the non-DOE officials are being ignored during the negotiated rulemaking process. The valid critiques of many aspects of the Act, such as the burdens on state resources, are left unaddressed during the rulemaking process. Instead of the administrative process leading to the best practices to achieve statutory goals, it becomes another roadblock to success for NCLB.

Part I of this Article describes the major statutory provisions of NCLB. These include the requirements that states set academic content standards for all grades, that states develop an assessment system to measure students' progress towards meeting the adopted academic standards, and finally the statutory requirement for schools to make adequate yearly progress towards all students meeting the designated proficiency standards. Part I also describes the dominant substantive critiques of NCLB. Part II of this Article describes the procedural requirements of NCLB, specifically the negotiated rulemaking sessions undertaken by the DOE since 2002. Part III provides a detailed description of the history of negotiated rulemaking as an administrative procedure. Part IV of this Article demonstrates the connection between the substantive critiques of NCLB and the DOE's failure in procedural execution. I argue that NCLB was intended to be a partnership between the federal and state governments to benefit the welfare of public schools. Instead, NCLB has created greater bureaucracy for school systems and has increased conflict between states and the federal government. I further contend that a significant barrier to maximizing the potential benefits of NCLB is the silencing of the interested stakeholders in the negotiated rulemaking process. Part V proposes solutions to the procedural missteps of NCLB that are intended to address the overall substantive goals of the Act.

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I. NCLB--A SUBSTANTIVE OVERVIEW

The legislation commonly known as the "No Child Left Behind Act of 2001" is an amendment to the Elementary and Secondary Education Act of 1965.13 The Act unfolds in many parts and focuses on a wide variety of topics, including improving academic achievement, the creation of charter schools, teacher training, and even the role of faithbased groups in improvement of public education.14

The portion of NCLB that is the focus of this Article and of most of the public attention is Title I of the Act, "Improving the Academic Achievement of the Disadvantaged." The stated goal of this portion of NCLB is to improve the academic performance of all public school chil-dren.15 Another goal of this portion is to "clos[e] the achievement gap between high and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers."16 To meet this goal of improving student performance, NCLB requires states to attend to three different areas: academic standards, assessments, and accountability.17

A. Academic Standards, Assessments, and Accountability Under NCLB

1.Academic Standards

NCLB requires states to develop statewide academic content and standards for all public schools and students.18 The academic stan

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dards adopted by a state must apply to students and all schools in the state.19 The states were required to adopt these standards by the 2004-2005 school year for math and reading.20 By 2007, the states must have developed academic content and standards in science.21

NCLB describes "challenging academic standards" as standards that (1) "specify what children are expected to know and be able to do"; (2) "contain coherent and rigorous content"; and (3) "encourage theteaching of advanced skills."22 Once the state sets academic content, the state should also set up three levels of achievement standards-- basic, proficient, and advanced--to...