The Making of No Child Left Behind: A Participant's View, Part One


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By Randall Moody

When a child walks into a classroom, it should be a place of high expectations. But too many schools don’t meet this test. That’s why instead of just pouring money into a system that’s not working, we launched a competition called Race to the Top…. [It]is the most meaningful reform of our public schools in a generation…. Race to the Top should be the approach we follow this year as we replace No Child Left Behind with a law that’s more flexible and focused on what’s best for our kids.”—President Barack Obama, 2011 State of the Union message to Congress.

No Child Left Behind (NCLB) was a 2002 law that gave the federal government an unprecedented involvement in K-12 public education, touching in some way every school district in the country and proposed by conservative Republican President George W. Bush. It had survived a long and torturous journey in 2001, including many months of congressional debate over content and funding, the distraction of the Sept. 11 terror attacks and a shift in the majority from Republican to Democrat in the Senate.

It provided billions of dollars of federal money to schools in return for mandated testing of reading and math in grades three through eight and one year in high school, development of performance standards to measure the progress of an entire school and subgroups, penalties for nonachieving schools and a “highly qualified” teacher in every classroom.

My involvement in the development and passage of this legislation was as one of several lobbyists for the National Education Association (NEA), the nation’s largest teachers’ union, representing almost three million educators. I was specifically involved in a civil rights issue, the private school voucher issue and special education funding, among others. These three proved to be among the most contentious aspects of the bill over the course of 2001.

Money to create the Race to the Top initiative, promoted by President Obama in his January speech and implemented by his Secretary of Education Arne Duncan, was included in the $787 billion American Recovery and Restoration Act—better known as the economic stimulus bill—passed in 2009. The $100 billion for public education in that bill included an approximate $5 billion “slush fund” for the secretary, which he has used to push his favorite education reform vehicle—charter schools.

That money is being distributed in a competition to states that set statewide standards and assessments for teachers and schools, turn around “low-achieving” schools and close achievement gaps among minority and other students. Nebraska, which has no charter school law, has not received any of this money. Charter schools, which have a very mixed record of success, are public schools that supposedly free up principals and teachers from school district bureaucracy and rules (and teacher unions). Their aim is to improve the academic performance of underachieving students, many of them minorities.

2001 NCLB Civil Rights Dispute

“…Democrats worked behind the scenes for the last two days to quell concerns of the National Education Association and civil rights groups that religious groups would be able to discriminate in hiring while receiving federal funding to provide after-school programs and tutoring.”—Congressional Daily newsletter, Nov. 30, 2001.

As I stood in line at 10 a.m. that November morning waiting to enter the room inside the Capitol where a conference committee of House and Senate Education Committee members would meet to hopefully finalize the provisions of NCLB, my cell phone was glued to my ear as a member of the Leadership Conference on Civil Rights read me the language of the civil rights protection amendment that had been approved in an early morning session that involved Sen. Ted Kennedy (D-MA), chair of the Senate Education Committee; Sen. Judd Gregg (R-NH), the ranking minority member; Rep. John Boehner (R-OH) (now Speaker Boehner), chair of the House Education Committee; Rep. George Miller (D-CA), ranking minority member; and White House staffers Sandy Kress and Margaret Spellings (later Secretary of Education Spellings). The language was the same as I had okayed the night before on behalf of the NEA and had been relayed to Sen. Kennedy. I told the civil rights staffer it was all right with me, and a few minutes later Sen. Kennedy strode by the line of lobbyists and others into the conference room, the doors were opened and the “conferring” began to reconcile the differences between the House and Senate versions of the bill.

Why the hang up on such a “seemingly small point,” as the Washington Post’s David Broder had subsequently written in a lengthy Dec. 17, 2001 piece on the law, headlined, “Long Road to Reform, Negotiators Forge Education Legislation”? Here’s why: So-called “supplemental service providers” had been included in the legislation as a sop to President Bush and Republican congressional leaders when their push for vouchers—using public money to send students to private and religious schools—was stymied in both the House and Senate with the help of Republican votes. These service providers—private companies or outside consortiums—would be called in at a certain point if a school was unable to meet academic goals. The foreseen problem would be that these providers might be religious organizations using federal money to discriminate in hiring tutors or other staff. The NEA and civil rights groups were adamant about preventing that from happening. I spent most of the late summer and fall of 2001 closeted in meetings with Democratic staffers trying to come up with language that they could take to Republicans to win their approval. This didn’t happen until the 11th hour and almost stalled the effort to complete the legislation.

NCLB ended up being an 1,100-page bill. So, the disputed language must have consisted of pages and pages, right? Here it is: “Nothing in this act shall be construed to permit discrimination on the basis of race, color, religion, sex (except as otherwise permitted under Title IX of the Education Amendments of 1972), national origin or disability in any program funded under this Act.”

After NCLB became law, the Bush Department of Education ignored this provision and attempted to implement departmental regulations that would have allowed the prohibited discrimination.

Show Me the Money

One of President Bush’s enticements to Democrats in the Congress to support NCLB was a promise to pour billions of dollars of federal money into the Department of Education for use in helping states implement provisions of the law. It was particularly important in garnering Sen. Kennedy’s support. He had been an advocate for decades for increased federal money to help children and schools located in poor areas of the country. In fact Bush’s first budget submitted to Congress proposed an 11.5 percent increase in the Department of Education’s budget, a record amount, but counting dollars that had already been appropriated for the current fiscal year and not spent, the proposed increase was only 5.9 percent—significant, but not nearly enough to fund all the provisions of his legislation. Democrats argued that at least $15 billion more would be needed. The discussion about a “funding gap” was eye opening for some Republicans who only a few years before had been calling for the abolishment of the whole department. But most went along with their party’s leader. After all, he had earlier in the year also won their support for a $1.35 trillion tax cut. This hit on federal income no doubt contributed to the lack of dollars available for NCLB the rest of the decade and enraged Sen. Kennedy and other Democrats who had counted on Bush’s support to fund his most significant domestic achievement.

The Fight over Vouchers

One of the signature elements of Bush’s education reform proposal to Congress was authorization of federal money to go to private and religious schools in the form of vouchers. The idea being that if parents did not like their public school, they could take their children out and use tax dollars to help pay for the cost of a private or religious education. Many public education advocates felt that this provision would cripple already underfunded public schools and be unfair to the children “left behind.” My organization and others felt this also was a backhanded way to reduce the number of public school teachers, many of whom belonged to unions, and curtail their political clout, which, for the most part, was used on behalf of Democrats.

Although most of the NEA’s political money and support went to Democratic candidates who were in line with the teachers’ union agenda, the organization had begun making a special effort following the 1994 congressional elections to build relationships with moderate Republicans after the GOP captured the majority in both the House and Senate. This paid off when it came time to vote on the voucher issue in NCLB. In both bodies, the voucher provision never made it out of the Education Committees due to lack of Republican support. House Education Committee chairman Boehner lost six moderate Republican votes who had been heavily lobbied by the NEA and other anti-voucher groups. But he vowed to bring back the issue when the bill was considered on the floor of the House. In the Senate, then-chairman James Jeffords (R-VT) did not support vouchers, and the provision was killed there, too.

When NCLB came to the full House in May, 55 Republicans defected from their leadership to defeat a voucher amendment; and in June, when the Senate took up NCLB, 11 Republicans and Jeffords (who had earlier become an Independent, caucused with the Democrats and threw control of the Senate to that party) refused to vote for vouchers. Some conservative commentators were apoplectic. Pat Robertson said on his TV show, “The NEA has enormous power. There’s no question that it is the most political group in the country. And they cloak themselves with mom and apple pie and education and all the good stuff. So if you come out against them, then you’re against education.” Washington Post columnist Ruben Navarrette Jr. said, “After years on the ramparts, school choice proponents may be feeling worn out—and sold out. They have learned not to expect much from Democrats who have education policy dictated to them by arm-twisting teachers’ unions….” Robert Novak wrote in the Post that by insisting on a bipartisan bill and giving Democrats who were the minority party a say on vouchers, “Bush has handed an indirect veto to his bitter foes in the National Education Association and the American Federation of Teachers.” Both unions had supported Vice President Al Gore in the 2000 presidential election.

In my conversations with Republicans who refused to go along with their party’s leaders on the voucher issue, they indicated geography played a big role in their vote. Many were from rural areas where public schools were the only schools and it wasn’t economically feasible or practical to divert money to private or religious schools. Others represented suburban or exurban areas where the public schools already provided good educational opportunities.

Part two of this essay, to be published in our July issue, discusses the Individuals with Disabilities Education Act (IDEA), funding issues surrounding both IDEA and No Child Left Behind (NCLB) and the possible future of the latter program under the Obama Administration.


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