By almost any measure, Montgomery High School, located in horsey Somerset County, New Jersey, is a tremendous success. The school boasts the third-highest average SAT scores in the state, and ranks in the top 3 percent in both reading and math. The federal Department of Education has named Montgomery a U.S. Blue Ribbon School. "I went to private school and considered it for my children, until I found Montgomery to be of similar caliber," says William Middlebrook, who has sent two daughters to the school.

Yet Montgomery High failed its attempt to meet the requirements of the federal government's No Child Left Behind education law. That 2002 statute demands a 95 percent participation rate on testing day, so that schools won't somehow discourage weaker students from taking the tests. Montgomery has 29 students signed up for special education, and two of them didn't show up on the day standardized tests were given out, making for an unacceptable 93 percent participation rate. The U.S. Department of Education has since softened the requirement slightly so that schools can average 95 percent over two years, but even under those rules, embarrassments like the one in New Jersey are certain to keep happening.

Making sure that virtually all students in a given area are tested equally is a legitimate goal. But as the Montgomery example attests, sometimes what looks good on paper doesn't play out too well in the real world. Under No Child Left Behind, any failure is a complete failure. And there are lots of ways a school can fail, even if it is doing its day-to-day job extremely well.

One of the major innovations of the law is to force schools to break down test results by numerous demographic subgroups, reflecting race, income level and proficiency in English. There are as many as three dozen different subgroups in all. Individual kids cut across the subgroups. A special education student who is a Latino from a low- income home is counted in 10 different subgroups across the NCLB grid. If she can't pass muster, she'll throw the school into jeopardy 10 different ways. As Montgomery High found out, even having her stay home sick on test day can cause real problems. Perverse results of this sort aren't playing too well with teachers, school administrators, parents or state and local officials. "This whole system is punitive," says David Shreve, an education specialist at the National Conference of State Legislatures, "and designed to identify problem schools without really dealing with the problems that are being uncovered."


The No Child Left Behind law, promoted by President George W. Bush and approved with bipartisan support in Congress, has given the federal government a huge new say in public education, at relatively little cost to the U.S. Treasury. The law has prompted some states to recalibrate their curriculum and educational efforts in positive ways. But those who have been stuck with both the expense and the job of making the law work are starting to wonder whether it's worth the attempt, if even a high-performing school ends up failing anyway.

This year, more than half the states considered legislation protesting No Child Left Behind, including resolutions calling on Congress to change or repeal it, bills to take schools out of the federal testing regimen (forfeiting federal dollars in the process), and others to block the use of state and local money to support the tests. "Everybody will fail," predicts Jim Rosborg, superintendent of schools in Belleville, Illinois, about 20 miles southeast of St. Louis. "Why have a penal system if you're going to throw everybody in jail?"

That school administrators and state officials are starting to push back hard against the new law and its strictures is a surprising turn of events, in many ways. No Child Left Behind grew out of the state- generated accountability movement in education, based on the idea that regular testing would allow teachers and schools to be judged by measurable criteria. In the 1990s, virtually every state passed requirements for new standardized tests. NCLB simply went further, requiring more ongoing testing and higher standards for teacher qualification.

To those who believe in this approach, the important issue is not whether teachers and school administrators find NCLB disturbing to budgets and to the status quo, but whether the law promises greater opportunity to kids who need it the most. "The basic idea was that all kids can learn, and if all kids can learn, schools should be held accountable for their progress," says William L. Taylor, chairman of the Citizens' Commission on Civil Rights and a leading liberal supporter of the law. If NCLB is abandoned or seriously weakened, he warns, "we will see more and more people leaving public schools."

Despite the complaints, no state has so far decided to opt out of the requirements. Vermont has come the closest, passing a law that allows individual districts to make that choice for themselves. But the concerns are serious in much of the country, and especially in conservative states, among them Virginia, Utah, Nebraska and Oklahoma, where the law is being viewed as the worst sort of federal bullying. "The entire conversation about this has gone from an education conversation to a political conversation," says Doug Christensen, commissioner of education in Nebraska. "Every state legislator, whether they like the idea or not, ought to be angry that the evolution of No Child Left Behind absolutely excluded them."

Those favoring No Child Left Behind tend to argue that the intensity of the criticism is itself a sign that the law is strong, appropriate medicine for a serious malady. When the president of the National Education Association called No Child Left Behind a "formula for failure" at the union's annual meeting--the group is considering a lawsuit challenging it--attorney Sandy Kress, who was a top adviser to Bush during NCLB's formulation, says he took it as evidence that the law is working. "It was the intention of this law to challenge the status quo," Kress says. "This is proof positive that it's succeeding."

That may be overly hopeful. With state legislators, school superintendents, teachers unions and many parents and media organs complaining so regularly and so loudly about the law's perceived flaws, including its betrayal of federalism, it's suddenly become a real question whether the law can retain enough support to survive.


The clear intent of No Child Left Behind is to make sure that school districts instill the same mastery of basic skills in minorities and the disadvantaged as they do in middle-class white children. Currently, almost half of all Hispanic and African-American students fail to graduate from high school. Those who do graduate, on average, trail several years behind white and Asian peers in basic skills. "Those are the kids whose needs are most likely to be swept under the rug," says Andrew Rotherham of the Progressive Policy Institute, a moderate Democratic think tank. "In a lot of states, what you're talking about are tests about pretty basic reading and numeracy. It's what middle-class parents expect and demand of their schools and would not tolerate for a moment if their schools were not imparting to their children."

It's an unquestionably noble idea. But is it feasible? Over the next decade, the law's requirements will toughen until schools will be asked to lift 100 percent of their students over the testing hurdles. Given the data so far, it's hard to see how anything close to that number could possibly be achieved.

During the past school year, for example, only 23 percent of Florida schools met NCLB requirements, even though 68 percent of the schools received grades of A or B from the state's own Department of Education. In Illinois, 44 percent of the schools have failed to meet the law's requirement for at least one year, while 15 percent have missed it two years running. A good number of the failures are due to statistical quirks, like the one in Somerset County, New Jersey, but so far, at least, all schools that fall short are being treated the same under the law.

NCLB formally describes schools that don't meet its requirements for any subgroup as being "in need of improvement," yet the media have latched onto a more contentious term: "failing schools." Whatever term one embraces, schools in that category face real penalties. If they don't meet the requirements for two consecutive years, they must allow any student to transfer to another school within the district. In the next year, they have to provide increased tutoring. In the year following that, if they are still deficient, the state has to step in and help them.

These penalties, along with the testing procedures themselves and the reformulation of curriculum to prepare for the tests, account for the huge cost estimates that have been associated with the legislation. This year alone, federal funding is expected to fall more than $6 billion short of the level promised at the time of passage in 2002.


NCLB opponents have won an important battle in the public relations war by arguing that the law should be operating smoothly already. Supporters insist that is asking too much. Michael Kirst, an education professor at Stanford University who was involved in the creation of the 1965 Elementary and Secondary Education Act, recalls that it took "three or more reauthorizations" and more than a decade before they'd gotten most of the bugs out of a law that was a lot less complicated than NCLB. "One of the things, rhetorically, the opponents have done well is set up the expectation that this law is supposed to work well immediately," Andrew Rotherham agrees. "You have to take the long view."

As was the case with No Child Left Behind, the 1965 law was pushed through Congress quickly by an ambitious president. The difference was that Lyndon Johnson had a consensus-building strategy that stretched beyond passage. "In our era," Kirst says, "we spent a lot of time building up grassroots support groups--parents groups, school site councils and others. We created a bottom-up constituency that was able to provide political counterweight to the existing organizations."

The Bush administration has operated a little differently, seeking mainly to dismiss or keep a lid on the NCLB opposition. Education Undersecretary Eugene Hickok has publicly dismissed the complaints of state legislatures against the law as "dinner conversation." Hickok charges that critics "would like to revisit the statute to gut it." Both the department and the White House worked hard this year to make sure that bills protesting the law wouldn't survive legislative action, with some state legislators receiving calls from Karl Rove, Bush's political adviser.

The administration has run a fairly sizable public relations operation in support of its views, sending Hickok, Education Secretary Rod Paige and others on regular tours around the country, and holding workshops for teachers to try to drum up support for the law from skeptical state and school officials. Still, the administration remains vulnerable to criticism that its efforts at persuasion have been more cosmetic than substantive. "I told a couple of high-level people in the department, 'You guys get criticism and treat it as a marketing problem,'" says NCSL's David Shreve. " 'This is like the New Coke--you keep shoving it down people's throats and they don't want it.'"

States have made some progress in winning flexibility from the Education Department in how they are permitted to adapt to the law's requirements. In response to their complaints, some of the rules were tweaked this year, offering more ways for teachers to meet the definition of "highly qualified," slightly increasing the percentage of special-education and limited-English students who can be exempted from a school's score, and allowing the participation rate to be averaged over time. But the department hasn't been as flexible as some states would like. And the new rules don't apply retroactively, meaning that some test scores yet to be released are going to count against schools, despite the fact that they would be acceptable under the revised guidelines.

There's a reason the feds have been reluctant to make significant changes in the law. A decade ago, the Improving America's Schools Act anticipated many of NCLB's goals and standards, and more than 8,000 schools were identified as needing improvement. But the feds proved eager to give in to state complaints, and granted so many waivers that the law was rendered practically meaningless.

"The 1994 act was far less effective than it should have been because the department moved, in my view, too aggressively to make it easy" to comply, says Sandy Kress, the Bush adviser. He says states that sincerely want to comply with NCLB, such as Michigan, Massachusetts and Ohio, are not only finding it practical to do so but seeing test scores improve as a result.

There remains, however, the indisputable fact that the law has not been funded at anywhere near the level that was originally promised. The Bush administration insists there is plenty of money to pay for the required testing, but financially distressed school districts, unable to attract much money from Washington, have been tempted to opt for the cheapest, least diagnostic "fill-in-the-bubble" tests, and to practice "drill and kill"--rote memorization teaching techniques--in order to get their scores up.

Ironically, these tactics may be most harmful to the disadvantaged students that the law was written to help. In some places, educators say, special-education pupils who had been receiving vocational help are now engaged in academic drilling and practice that, arguably, will be less useful to them as adults. Bill Mathis, school superintendent in Brandon, Vermont, says poorer schools in his area are concentrating on reading and math exercises, forgetting about music, arts, civics and just about anything else that isn't on a federally prescribed test. "The so-called failing school," he says, "is having a failing curriculum."


Many educators say that of all the demands No Child Left Behind puts on schools, the hardest one to accept is the notion that schools can overcome all the environmental factors that keep some children from being ready to learn as easily as their peers. No pedagogical strategy or initiative, they argue, is a strong enough weapon on its own to overcome the long-term effects of poverty.

So far, the state that has worked hardest to supplement NCLB with its own broad-based programs is Michigan. It has gone so far as to place social workers in the more troubled schools in order to address problems of housing and hunger so that students stand a better chance. "If you look at the schools that are failing, they obviously tend to be in districts with higher rates of poverty and have families that are facing difficulties," says Marianne Udow, director of the Michigan Family Independence Agency.

Udow concedes there is little hard data after a year to prove that this particular effort is helping boost test scores significantly. Still, she says, there have been some notable success stories--a hearing-impaired child whose condition was spotted by social workers; a student whose performance improved after stable housing was found for his family.

Michigan will double the number of schools with social workers on site, from 19 in the last school year to 39 in the current one. But even if that proves sufficient to make a tangible difference in test scores, it will be much too costly to implement on an extensive basis statewide. Social work adjuncts are not underwritten by any federal education dollars, and state funding for such programs, in Michigan as in most places, has been decreasing in the past couple of years.

In addition to the social work experiment, the Michigan Department of Education is stepping up other efforts, providing direct assistance and training to those schools labeled as "High Priority" because their students have struggled for several years. The result has been an encouraging short-term change in some of the numbers. In May, Michigan School Superintendent Tom Watkins announced that math scores for African-American students in the 8th grade were up by 13 percentage points over the previous year.

But that only lifted the percentage of those students passing the tests from 21 percent to 34 percent. Michigan doesn't have enough money to make all schools a "High Priority." Meanwhile, further spending pressures loom on the horizon, there and elsewhere, as more and more schools turn in failing scores and as parents opt to transfer their children out of those schools, which will require paying for buses and finding seats at other facilities. Money for tutoring will be spread thin as more schools stand "in need of improvement," with states unable to send all of them enough money to make much difference in their numbers. "What you're left with," says Daniel Losen, an education scholar at Harvard University, "is a very highly charged political football where you don't have all the resources necessary for these schools to be successful."