No Way Out

The No Child Left Behind Act provides only the illusion of school choice.


Like every junior high school student in Camden, New Jersey, 12-year-old Ashley Fernandez attends a school that has been designated as failing under state and federal standards for more than three years. But low expectations were the least of this seventh-grader's problems. In 2004 Ashley's gym teacher became irritated by his unruly class and punished all the girls by putting them in the boys' locker room. Two boys dragged Ashley into the shower room. One held her arms and the other held her legs while they fondled her for more than 10 minutes. The teacher was not present, and no one helped Ashley.

Ashley's principal, who has refused to acknowledge the assault, denied her a transfer out of Morgan Village Middle School. Since the gym incident, Ashley has received numerous threats, including repeated confrontations with male students who grab her and then run away. When Ashley's mother began keeping her home from school, she got a court summons for allowing truancy.

Ashley is not alone. Last year Carmen Santana's grandson Abraham was afraid to go to his classes at Camden High School after two boys hit him in the face, broke his nose, and chipped his teeth. Santana was also charged with allowing truancy while she sought permission for Abraham to complete his senior year studies at home.

In 2004 Samet Kieng was almost killed at Camden's Woodrow Wilson High School after refusing to give up his chemistry class stool to a latecomer. According to a Philadelphia Inquirer story based on Samet's account, "his assailant, who outweighs him by about 60 pounds, typically arrived late for chemistry class and demanded Kieng's seat. Kieng was studying for the state's high school proficiency exam and refused to move. Kieng said he was surprised when the student confronted him later in the locker room." He was beaten by at least four students. Samet could transfer to the other public high school in Camden, but it is officially designated as "persistently dangerous."

In all, more than 100 parents have removed their children from Camden schools because of safety concerns. The school district's response: a truancy crackdown.

This situation is exactly the sort of problem that George W. Bush's much-ballyhooed No Child Left Behind Act (NCLB) was supposed to address. As the president said in a January 2001 press conference introducing the law, "American children must not be left in persistently dangerous or failing schools. When schools do not teach and will not change, parents and students must have other meaningful options. And when children or teenagers go to school afraid of being threatened or attacked or worse, our society must make it clear it's the ultimate betrayal of adult responsibility."

NCLB was supposed to rescue kids like Ashley, Abraham, and Samet. The legislation was passed in December 2001 by a bipartisan coalition led by President Bush and Sen. Ted Kennedy (D-Mass.). Its central components include annual math and reading tests for students in grades 3 to 8 based on state standards; parent-friendly report cards with assessment results broken out by poverty, race, ethnicity, disability, and English-language proficiency; and the promise to offer parents a choice of a better public school when their child's school is designated as dangerous or has failed to meet its state's academic standards for two years in a row.

As Bush explained in a January 8, 2002, speech at the University of New Hampshire, "If a school can't change, if a school can't show the parents and community leaders that they can teach the basics, something else has to take place. In order for there to be accountability, there has [sic] to be consequences. And the consequence in this bill is that after a period of time, if a parent is tired of their child being trapped into [sic] a failed school, that parent will have different options, public school choice, charter, and private tutoring."

Similarly, Kennedy—who has since charged that NCLB has been inadequately funded and implemented—initially declared that the bill's "message to every parent" is "help is on the way." In one of many press releases celebrating the act, U.S. Rep. John Boehner (R-Ohio), chairman of the House Education Committee, promised that "these changes represent a significant departure from the status quo and will empower low-income parents with new options and new choices."

Three years later, Camden's families across the United States are still trapped in failing and dangerous schools. There are many adjectives that describe their relationship with the public school system, but empowered is not one of them.

Since the No Child Left Behind Act was passed, less than 2 percent of parents nationwide have transferred their children to other public schools. Teachers unions, school administrators, and journalists have argued that the low transfer rates prove parents do not want more choices and that they prefer their local schools. But while parents have more information than ever about the quality of their children's schools, in most cases they still have no way out of a failing institution.

Districts have not made a good-faith effort to implement public school choice. Sometimes parents are not notified of their option to change schools at all; other times they're told only after the school year is well under way. Some districts send parents letters discouraging them from transferring their kids. The choices themselves are limited to marginally better schools, with superior institutions often refusing to accept low-performing students.

One Bad School to Another

A February 2004 report by the Civil Rights Project at Harvard found that in 10 urban school districts with large concentrations of children eligible to exercise school choice under NCLB, less than 3 percent of eligible students requested a transfer. Even with the small number of requests, no district in the study was able to approve all or even most of the transfer requests.

Many parents of students in failing schools are not even aware of the right to transfer. A federally funded survey of Buffalo parents by the Brighter Choice Public School Project found that 75 percent of the parents surveyed did not realize their children attended a school designated as in need of improvement, which means it did not make adequate yearly progress in reading or math for two consecutive years. A full 92 percent said they would like to switch schools. A comparable percentage of parents in Albany also were unaware of the transfer option.

Similarly, a survey by the Boston-based Pioneer Institute found that only 29 percent of parents with children in underperforming schools knew the status of their children's schools, compared to 59 percent of parents whose children attended satisfactorily performing schools. Few Massachusetts parents knew they could transfer their children from underperforming schools to more successful schools. Out of about 100,000 Massachusetts students eligible to transfer out of underperforming schools, fewer than 300 have opted to do so.

In the end, though, the problem is not the parents but the law itself. Under NCLB, Title I federal funding—money used to provide extra educational services to disadvantaged students in high-poverty schools—does not follow children to better-performing, non-Title I schools. The result is that better-performing schools have no financial incentive to admit low-performing children.

In practice, children are offered transfers only to other Title I schools. Since most Title I schools are mediocre performers at best, parents have a choice of schools that are only marginally better. Furthermore, the school districts decide which schools parents will be allowed to "choose"; often they offer only one or two alternatives.

Many parents are offered "choice" schools that are just as low-performing as the failing school they are trying to break away from. In the words of school choice advocate Angel Cordero of the New Jersey-based Education Excellence for Everyone, "Camden children are transferred from one bad school to another bad school."

In Chicago students in only 50 of the 179 federally identified failing elementary schools would be allowed to move into higher-performing schools. Parents could choose from a list of 90 schools and could not pick a school more than three miles away from home. In 70 of the 90 schools open to transfers, most pupils failed state tests last year.

In San Bernardino, California, the designated school of choice for high school students was Arroyo Valley High School, which had lower test scores than the schools that were officially designated as failing. How could that happen? Federal standards did not designate Arroyo as underperforming only because until 2003-04 it was not considered "fully functional." (That was the first year it served all four grade levels.) District officials acknowledge that Arroyo isn't necessarily any better than the rest, but it is the only high school option available, since four out of the five high schools are underperforming and considered in "program improvement," an NCLB euphemism for schools that have failed for more than three years in a row.

In October 2003 Connecticut's Hartford Courant described how for months Stacy May fought to transfer her son Taren out of Kinsella Elementary. Hartford school officials confirmed to the newspaper that May was welcome to transfer her son because Kinsella was now labeled a "school in need of improvement." But the district limited May's choices to three other schools, all of which had low scores on the state's standardized test and all of which are now also designated "in need of improvement."

In Palm Beach County, Florida, district officials are projecting that as many as 50,000 students at 64 of the poorest schools could choose another school this fall. But here again, many high-performing schools will be off-limits—and parents will have only two weeks to decide whether they want their children to move.

Even when parents make direct requests for transfers, districts frequently refuse to grant them. In New York City in 2002-03, more than 278,000 students were eligible for school choice transfers, 6,400 students requested transfers, and the district granted only 1,500 requests. That same year Richmond, Virginia, had just 120 requests for transfer out of 8,000 eligible children, and the district honored only 30.

Transfers are refused because the better schools are at capacity. The federal law ignores the grim reality that many urban districts have few high-performing schools with open slots. As the chief executive of Chicago Public Schools, Arne Duncan, told Time magazine in September 2003, "It's not like we have a lot of high-performing schools at 50% capacity."

The lack of slots might be less of a problem if Title I dollars could follow children to higher-performing schools. But a better solution is to break up the education dollars to increase capacity, allow more competition, and increase high-quality choices. In June 2004, for example, Chicago Mayor Richard Daley, who is in the unique position of legally controlling Chicago schools, introduced a plan to open 100 of the city's worst-performing schools to competition. By 2010 Daley intends to recreate more than 10 percent of the city's schools—one-third as charter schools, one-third as independently operated contract schools, and the remainder as small schools run by the district. Unfortunately, the governance structures of most school districts make it politically difficult to replicate Daley's plan: They would require approval by a school board or state legislation.

When parents are provided with real choice, demand increases dramatically. Since 1999, the privately funded Children's Scholarship Fund (CSF) has provided more than 62,000 low-income children across the nation with scholarships to attend private schools. The first year, more than 1.25 million children applied in 20,000 communities; since it was launched, the average income of participating families has been $22,000. The children's new schools may be parochial, denominational, independent, or a home school. They do not have to belong to any organization or meet any other requirement. The choice is left up to each family.

This year more than 24,000 kids are using CSF tuition assistance to attend a wide variety of private schools. In Los Angeles in 2003, only 229 children managed to transfer to a different public school under No Child Left Behind. Yet the Southern California Children's Scholarship Fund placed 1,600 children and has a waiting list of more than 5,000 names. Los Angeles charter schools such as Fenton Avenue Charter School, Camino Nuevo, and Accelerated Learning also have long waiting lists.

Around the country, the few bona fide school choice and tax credit programs continue to add children every year and often have long waiting lists as well. For example, Florida's Corporate Tax Credit Scholarship program, which provides scholarships to low-income children to attend public or private schools, serves 13,000 children, with another 20,000 waiting to get in.

Parents may not be getting much choice, but they are getting a big tax bill. In a July study, the Cato Institute's Neal McCluskey notes that federal spending at the more than 36 departments and organizations that run major education programs ballooned from about $25 billion in 1965 (adjusted for inflation) to more than $108 billion in 2002. This year funding for the U.S. Department of Education is at an all-time high: $56 billion, an increase of $2.9 billion over last year and $13.8 billion since Bush took office.

The president's 2005 budget would raise education spending still further, to $57.3 billion. Under No Child Left Behind, Title I aid has risen to $12.4 billion. Title I spending has increased more during the first two years of the Bush administration than it did during all eight years of Bill Clinton's administration.

Unenforceable Choice

Despite state education leaders' cries that schools cannot afford the choices that NCLB was supposed to enshrine in law, districts are sitting on $5.8 billion in unspent federal funding from previous years, including nearly $2 billion in Title I aid. New York ranks first with $689 million in unspent funds; California is second with $671 million. Such money could provide many scholarships to better-performing private or public schools. Local districts claim that the unused funding is already obligated to existing programs and that federal funding rules are responsible for the delays.

Extra dollars do not necessarily equal better performance. More than 26,000 schools have been designated as failing under NCLB. The 2003 National Assessment of Educational Progress (NAEP) found that more than two-thirds of fourth- and eighth-graders were not proficient in math and reading. The NAEP also provides troubling news for students in Title I schools. In math, for example, 7 percent of black eighth-graders and 11 percent of Hispanics are proficient, while 61 percent and 53 percent, respectively, are "below basic."

Camden schools show that more money is not the answer. Camden is one of New Jersey's 30 Abbott districts—districts with low property-tax bases that receive supplemental funding from the state. As a result, Camden's per-pupil funding is higher than the New Jersey state average of $10,000 and the national average of $8,000; the Camden district has revenues of approximately $15,000 per pupil and receives large portions of federal Title I dollars. Camden schools had more than 1,200 incidents of serious violence in 2001-02, an increase of 300 percent from the previous year. The district has refused to release updated school violence numbers since then, but this year saw several highly publicized incidents, including a foiled Columbine-style plot to shoot students and an increase in the number of schools labeled persistently dangerous.

In the beginning, supporters of No Child Left Behind argued that its problems were just a matter of districts' adjusting to the new law. But as we begin the third school year in which kids are supposed to be able to escape failing schools, a lack of meaningful choice appears to be the norm.

The paucity of choice reflects another failure of the law: It has no real sanctions for schools that fail to comply. Parents can't even sue the government to compel federal officials to enforce the law. When parents in New York City and Albany sued their districts for denying children their rights to transfer and to receive tutoring services, a federal judge dismissed the suit, ruling that the law did not confer "choice" rights that could be enforced in court.

To judge from education activists' reports, going directly to the U.S. Department of Education doesn't seem to be an effective course of action either. New Jersey activist Angel Cordera repeatedly has tried in vain to get the Department of Education to enforce the law's school choice provision. In the meantime, he has worked tirelessly to find private scholarships for the most victimized children. Cordera recently found a place for Ashley Fernandez in a local Catholic school.

In the last two years, the Camden City Council (whose current members have never enrolled their own children in Camden's public schools) has twice passed resolutions calling for immediate school vouchers for the city's trapped children. Last fall the council voted 5-1 to ask the state of New Jersey to allow public funds to be used for scholarships. Such scholarships would enable children who are eligible to attend a school outside the Camden district, or even a private school. A 2003 survey by Rutgers University's Eagleton Institute found that 72 percent of residents in Abbott districts such as Camden support vouchers.

But for the time being, such options aren't available for students such as Ashley—and Abraham Santana and Samet Kieng. They don't have 15 years to wait for the No Child Left Behind Act to increase reading and math proficiency. They don't need Washington rhetoric about accountability, empowerment, or the imminent arrival of help. They need real choices now—while they're still in school and while they still have a chance to learn.