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No Child Left Behind: Disincentives to Focus Instruction on Students Above the Passing Threshold
Journal Articles
  • Christina Payne Tsoupros, University of the District of Columbia David A Clarke School of Law
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J. L. & Educ.

As a result of the No Child Left Behind Act (NCLB), schools place a great emphasis on standardized testing. Students at risk of failure are identified for additional instruction. This is aligned with the adequacy (versus equity) framework of school finance litigation, which seeks to bring the bottom up to a certain minimum level. Under the adequacy ideology, the focus is on achieving a minimum threshold of proficiency. In low performing schools where a high percentage of students are at risk of failing the test, a focus on the minimum creates disincentives to work with students performing at or above the testing expectations This is inappropriate because education functions in part as a positional good. We should not adopt education policies that function as ceilings on students' achievement. The existing body of education law literature on NCLB has a large focus on low performing students, particularly in low performing schools. Existing literature argues either that NCLB reforms education for these students and school or it hurts them the most. There is little discussion about on level students who meet the testing expectations. These students do not trigger the red flags that the low performing students do, and as a result, they may get lost in the mix. This would be more pronounced in low performing schools, where most of the students may be at risk of failure. This Note argues that NCLB adversely affects students performing at or above testing expectations. To remedy this, we should use ideas from the equity framework of school finance litigation, which is comparative in nature, to learn from the problems of NCLB as we transition into Race to the Top and strive to maximize the potential of all students, including the on level students. School finance decisions since the 1960s have taken an equity or adequacy approach, or a combination of both approaches. The emphasis on standards based reform has intersected with school finance decisions, particularly since the enactment of NCLB. Existing literature analyzes whether this will help or hinder plaintiffs in school finance lawsuits. This Note intends to use the ideology of the equity and adequacy frameworks of school finance as lenses through which to view NCLB, particularly as it affects those students who meet the testing expectations in low performing schools. NCLB is a parallel to the adequacy ideology, setting goals at a minimum threshold of acceptability or proficiency. Such goals are inappropriate as educational policy and this Note proposes ideas from the equity ideology as a means of coping with NCLB. Part II provides background on the high stakes testing component of NCLB and an overview of some of the main criticisms of the law. Part III discusses the adequacy and equity frameworks of school finance litigation and how they intersect with NCLB. Part IV analyzes how using adequacy as a lens or framework can help demonstrate how NCLB creates disincentives to work with students who are above the passing mark. This analysis centers on low performing schools and argues that NCLB creates incentives to work with students on the threshold of passing to the exclusion of the on level students, which results in a ceiling on student achievement. Part V argues that focusing on a minimum level of acceptability is poor public policy and suggests possible solutions, relying on aspects of the equity ideology, and addresses the potential drawbacks of an equity-oriented approach. Part VI concludes the Note with specific examples of cases that have used equity-oriented approaches that may serve as a model for future decisions.

Citation Information
39 J. L. & Educ. 471 (2010)