Order Code RL31407
CRS Report for Congress
Received through the CRS Web
Educational Testing: Implementation of
ESEA Title I-A Requirements Under the
No Child Left Behind Act
Updated April 6, 2004
Wayne C. Riddle
Specialist in Education Finance
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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Educational Testing: Implementation of ESEA Title I-A
Requirements Under the No Child Left Behind Act
Summary
The No Child Left Behind Act of 2001 (NCLBA) contains several new
requirements related to pupil assessments for states and local educational agencies
(LEAs) participating in Elementary and Secondary Education Act (ESEA) Title I-A
(Education for the Disadvantaged). These expand upon less extensive requirements
that were adopted under the Improving America’s Schools Act (IASA) of 1994.
Under the NCLBA, in addition to the IASA requirements for standards and
assessments in reading and mathematics at three grade levels, all states participating
in Title I-A will be required to implement standards-based assessments for pupils in
each of grades 3-8 in reading and mathematics by the 2005-2006 school year. States
will also have to develop and implement assessments at three grade levels in science
by the 2007-2008 school year. Pupils who have been in U.S. schools for at least
three years must be tested (for reading) in English, and states must annually assess
the English language proficiency of their limited English proficient (LEP) pupils.
Assessments must be of “adequate technical quality,” and grants are authorized for
development of enhanced assessments. Grants to states for assessment development
are authorized, and $390 million has been appropriated for FY2004.
In addition, the NCLBA requires all states receiving grants under ESEA Title
I-A to participate in National Assessment of Educational Progress (NAEP) tests in
4th and 8th grade reading and mathematics to be administered every two years, with
all costs to be paid by the federal government. NAEP is a series of ongoing
assessments of the academic performance of representative samples of pupils
primarily in grades 4, 8, and 12. Beginning in 1990, NAEP has conducted a limited
number of state-level assessments wherein the sample of pupils tested in each
participating state is increased in order to provide reliable estimates of achievement
scores for pupils in the state. Previously, all participation in state NAEP was
voluntary, and additional costs associated with state NAEP were borne by
participating states. The statutory provisions authorizing NAEP are amended by the
NCLBA to maximize consistency with the NCLBA requirements and prohibit the use
of NAEP assessments by agents of the federal government to influence state or LEA
instructional programs or assessments.
Issues regarding the expanded ESEA Title I-A pupil assessment requirements,
which may be addressed by the 108th Congress, include: What types of assessments
will meet the ESEA Title I-A requirements? How strict will the Department of
Education be in reviewing and approving state assessment systems, and will states
meet the expanded assessment requirements on schedule? What will be the cost of
developing and implementing the assessments, and to what extent will federal grants
be available to pay for them? What might be the impact of the requirement for
annual assessment of the English language proficiency of LEP pupils? What might
be the impact on NAEP of requiring state participation, as well as the impact of
NAEP on state standards and assessments? And what are the likely major benefits
and costs of the expanded ESEA Title I-A pupil assessment requirements?

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current State Testing Policies and Practices . . . . . . . . . . . . . . . . . . . . . . . . . 1
Testing Program Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Federal Policies or Activities Regarding Pupil Assessments Under the
No Child Left Behind Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ESEA Title I-A Requirements for Standards and Assessments . . . . . . . . . . 4
Limits on ED Influence Over State Standards and Assessments . . . . . . 9
State Assessment Grants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
National Assessment of Educational Progress . . . . . . . . . . . . . . . . . . . . . . . 10
State NAEP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
NAEP Provisions in the No Child Left Behind Act . . . . . . . . . . . . . . 12
Status of Implementation of the Assessment Requirements . . . . . . . . . . . . . . . . 14
ED Review of Evidence Regarding Assessments to Meet the
“1994 Requirements” Under Title I-A . . . . . . . . . . . . . . . . . . . . . . . 14
Common Problem Areas Found in Reviews of State Assessment
Systems with Respect to the “1994 Requirements” . . . . . . . . . . 16
Interpretation by ED of the Expanded Standard and Assessment
Requirements of the No Child Left Behind Act . . . . . . . . . . . . . . . 17
Title I-A Standard and Assessment Requirements . . . . . . . . . . . . . . . 17
Steps Toward Implementation of the NAEP Requirements . . . . . . . . 21
Issues Regarding the Expanded ESEA Title I-A Pupil Assessment
Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
What Types of Assessments Would Meet the Expanded
Assessment Requirements? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
How Strict Will Be ED’s Review of State Assessment Systems, and Will
States Meet Requirements on Schedule? . . . . . . . . . . . . . . . . . . . . . . 24
What Will Be the Cost of Developing and Implementing the
Required Assessments, and to What Extent Will Federal Grants
Be Available to Pay for Them? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
What Might Be the Impact of the Requirement for Annual Assessment
of English Language Proficiency of LEP Pupils? . . . . . . . . . . . . . . . 28
What Might Be the Impact of Requiring State Participation in NAEP? . . . 29
Possible Influence on State Standards and Assessments Arising
from (Marginally) Increased Stakes . . . . . . . . . . . . . . . . . . . . . . 29
Voluntary Participation by LEAs, Schools, and Pupils . . . . . . . . . . . . 30
Can NAEP Results Be Used to “Confirm” State Test Score Trends? . 31
What Are the Likely Benefits and Costs of the Expanded Title I-A
Assessment Requirements? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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Glossary of Selected Terms Used in This Report
Criterion-referenced test (CRT): “Criterion-referenced” tests measure the extent to
which pupils have mastered specified content (content standard) to a predetermined
degree (achievement standard). A typical criterion-referenced test result is that a 4th
grade pupil’s achievement in mathematics is at the “proficient” level, which is above
a “basic” level, but below an “advanced” level. Most state-developed assessments,
such as the Connecticut Mastery Test, the North Carolina End-of-Grade Tests, or the
Texas Assessment of Academic Skills, are criterion-referenced tests.
Domain (of a test): The content and skills upon which a test is based.
Item (of a test): A test question.
Norm-referenced test (NRT): The primary distinguishing characteristic of “norm-
referenced” tests is that pupil performance is measured against that of other pupils,
rather than against some fixed standard of performance. Norm-referenced test results
are usually expressed in terms of population percentiles along a bell-shaped
distribution of tested pupils. A typical norm-referenced test result is that a 4th grade
pupil’s achievement in mathematics is at the 55th percentile, meaning that her or his
performance is better than that of 55% of a nationally representative sample of 4th
grade pupils who have taken the test under the same conditions, but worse than that
of the other 45% of tested pupils in the sample. Most of the widely administered,
commercially published K-12 achievement tests, such as the Iowa Test of Basic
Skills, TerraNova, or the Stanford series, are norm-referenced tests, at least in their
standard forms.
Standardized test: Any test for which the test items, as well as the conditions under
which the test is administered, are constant. Thus, both CRTs and NRTs may be
standardized tests.

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Educational Testing: Implementation of
ESEA Title I-A Requirements Under the
No Child Left Behind Act
Introduction
The No Child Left Behind Act of 2001 (NCLBA, P.L. 107-110), signed on
January 8, 2002, contains a number of new requirements related to pupil assessments
for states and local educational agencies (LEAs) participating in Title I-A (Education
for the Disadvantaged) of the Elementary and Secondary Education Act (ESEA).
These new assessment requirements expand upon an earlier series of requirements
for participating states to adopt curriculum content standards, academic achievement
standards, and assessments linked to these at three grade levels, which were adopted
under the Improving America’s Schools Act (IASA) of 1994 (P.L. 103-382).
This report provides background information on state pupil assessment
programs and policies, a description of the ESEA Title I-A assessment requirements
as expanded by the NCLBA, a review of the implementation status of these
requirements, and an analysis of related issues which may be addressed by the 108th
Congress. This report will be updated occasionally, when major developments occur
in the process of implementing the expanded ESEA Title I-A pupil assessment
requirements.
Current State Testing Policies and Practices
The academic achievement of pupils in public elementary and secondary schools
is assessed using many types of tests. Pupils may take tests developed by individual
teachers or schools, commercially published tests selected by their LEA, or
assessments selected and/or developed by their state educational agency (SEA). This
report will focus almost entirely on state-mandated assessments — tests which must
be administered to virtually all pupils in selected grades who attend a state’s public
K-12 schools — because such tests are the primary focus of federal policies regarding
pupil assessment.

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CRS-2
According to recent surveys,1 every state except one (Iowa) now requires its
LEAs to administer specified assessments to all pupils attending public schools in
one or more grades.2 The number of grades and subjects in which state-mandated
assessments are administered varies widely, from only one grade and subject (e.g.,
the only state-mandated assessment in Nebraska currently is a writing test for pupils
in grade 4) to tests in multiple subjects and most K-12 grades (e.g., Alabama requires
pupils in each of grades 3-11 to take state-selected tests in English, mathematics,
science, and history). Few state-mandated tests are administered to pupils below
grade 3, because of a variety of concerns about administering standardized tests to
very young pupils, or in grade 12, in part because most assessment activity for these
pupils is focused on college entrance tests. With respect to grades 3-8 in particular,
15 states plus the District of Columbia currently administer assessments in
mathematics and reading to pupils in each of these grades; however, it is unclear how
many of these assessments are linked to state content and achievement standards.
State-mandated assessments have been developed in one of three basic patterns.
They are either: (a) developed by the states themselves, usually with technical
assistance from commercial firms employing assessment specialists; (b) developed
almost completely by commercial test publishers, either as generic tests sold in the
same form throughout the nation,3 or special versions of such tests which are
customized to be more consistent with the curriculum content and achievement
standards of a state; or (c) developed through multi-state consortia.4
Some state-mandated assessments, whether developed by the states themselves
or in cooperation with other states or commercial firms, are “criterion-referenced”
tests, or CRTs (see Glossary) designed to determine the extent to which pupils have
mastered specific curriculum content and skills. Other state-mandated tests are either
generic or customized “norm-referenced” tests, or NRTs (see Glossary) — tests
designed primarily to rank pupils’ achievement level in comparison to a nationally
representative sample of pupils — purchased by states from commercial test
publishers. These two types of tests vary primarily regarding how test results are
1 Much of the data in this section is derived from: No State Left Behind: The Challenges
and Opportunities of ESEA 2001, by the Education Commission of the States, available at
[http://www.ecs.org]; and Assessment and Accountability Systems: 50 State Profiles, by the
Consortium for Policy Research in Education, available at [http://www.cpre.org/
Publications/Publications_Accountability.htm].
2 While Iowa does not mandate participation in any specific assessment, tests developed by
the Iowa Testing Programs at the University of Iowa and published nationwide by Riverside
Publishing are administered to a large majority of pupils attending public K-12 schools in
Iowa, on the basis of voluntary decisions by each LEA.
3 Three of the largest such commercial test publishers are: (1) CTB/McGraw-Hill, at
[http://www.ctb.com/]; Ri verside (Houghton Mifflin) Publishing, at
[http://www.riverpub.com/products/groupindex.html]; and Harcourt Assessment, at
[https://marketplace.psychcorp.com/PsychCorp/International.aspx].
4 An example of such a consortium is the New Standards Project, a joint effort of several
states and LEAs, the National Center on Education and The Economy, and the Learning
Research and Development Center at the University of Pittsburgh.

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CRS-3
analyzed, but also typically differ to some degree with respect to such characteristics
as the range of questions included.5
As of spring 2000, two states (Montana and South Dakota) administered only
NRTs, 17 administered only CRTs, and 29 administered both kinds of tests in
different grades and/or subject areas, with six of the latter states (Alabama, Idaho,
Montana, South Dakota, West Virginia, and Wisconsin) using NRTs as their primary
assessment instruments. In addition, six states (California, Delaware, Indiana,
Missouri, New Mexico, and Tennessee) have developed state tests which are
designed to produce both achievement results linked to state standards (criterion-
referenced results) and nationally-normed results (norm-referenced results).
Testing Program Costs. Complete information on the costs associated with
state-mandated pupil testing programs is not available. There are many potential
sources of such costs, both direct and indirect, at the state, LEA, and school levels,
and there are unresolved debates over how to estimate and whether to consider
certain types of costs, especially indirect ones.6
A survey of direct, state-level expenditures for state-mandated assessment
programs was conducted in early 2001 by the Pew Center on the States.7 These data
combine state-level expenditures for both test development and administration for
FY2001 (FY2000 for North Dakota and Vermont). The figures do not include any
LEA-level expenditures, either direct or indirect, nor possible indirect state level
expenditures for state-mandated testing programs.
According to this survey, state-level, direct expenditures for K-12 pupil
assessment programs in FY2001 totaled $422.8 million. The expenditures per state
varied from zero for Iowa and $0.2 million for North Dakota, to $44.0 million for
California and $26.7 million for Texas. On a per-pupil basis, these costs were found
to vary from $1.46 per pupil in West Virginia to $82.55 per pupil in Alaska. Per
pupil costs of state-mandated assessments tend to be low in states which rely
primarily on versions of commercially-published NRTs, such as West Virginia,
Alabama ($7.80 per pupil), New Mexico ($3.21 per pupil), and Utah ($3.16 per
pupil). In contrast, per pupil costs were found to be highest for several states which
5 For example, in order to clarify distinctions between high- and low-achieving pupils, a
norm-referenced test will typically include some very difficult questions that only a few
pupils can answer, and some very easy questions that almost all pupils can answer correctly.
Test content and questions are selected largely on the basis of how efficiently they rank
pupils. In contrast, a CRT would be focused solely on the relevant content standards, with
no direct emphasis on distinguishing the highest- from the lowest-achieving pupils.
6 Direct expenditures include those for such activities and services as development and field
testing of assessments, purchase of test materials, scoring, or dissemination of results.
Indirect expenditures might include those for time spent by teachers and other staff
preparing pupils for or administering assessments or overhead costs. For a review of related
issues, see Richard P. Phelps, Estimating the Costs of Standardized Student Testing in the
United States, Journal of Education Finance, winter 2000, pp. 343-380.
7 Available on the Internet at [http://www.stateline.org].

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CRS-4
rely primarily or solely on state-specific CRTs, such as Alaska, Wyoming ($78.34 per
pupil), Virginia ($68.90 per pupil) and Massachusetts ($68.02 per pupil).8
More detailed, but less comprehensive or current, information may be found in
a study of the costs of developing and initially implementing assessments aligned
with curriculum standards in two states — Kentucky and North Carolina. According
to this study,9 the total five-year state-level costs of developing and implementing a
new assessment aligned with state standards for Kentucky were $9.55 million ($1.9
million per year) for test development and $33.3 million ($6.67 million per year) in
total (including development, administration, etc.). For North Carolina, the total
three-year state-level costs were found to be $4.0 million ($1.34 million per year) for
test development and $27.5 million ($5.5 million per year) in total. The costs for
these two states are not necessarily representative of the costs for all states. For
example, costs might be lower for states which develop tests jointly with a group of
other states, or which contract with a commercial test publisher for a customized
version of a test which is marketed nationwide in a generic form.
Federal Policies or Activities Regarding Pupil
Assessments Under the No Child Left Behind Act
The following section of this report describes the major pupil assessment-related
provisions of the ESEA as amended by the NCLBA.
ESEA Title I-A Requirements for Standards and
Assessments
The provisions of ESEA Title I-A, as amended by the NCLBA, regarding
standards and assessments reinforce and expand upon provisions initially adopted in
the Improving America’s Schools Act of 1994 (IASA). Whether under the IASA or
the NCLBA, these standards and assessment provisions are linked to receipt of
financial assistance under ESEA Title I-A — i.e., they apply only to states wishing
to maintain eligibility for Title I-A grants. However, since Title I-A is the largest
federal K-12 education program, funded at $11.7 billion for FY2003, it is generally
considered unlikely that many states would choose not to participate in the program
in order to avoid implementing the expanded assessment requirements.
The IASA of 1994 attempted to raise the instructional standards of Title I-A
programs, and the academic expectations for participating pupils, by tying Title I-A
instruction to state-selected curriculum content and academic achievement standards.
These provisions were adopted in response to concerns that Title I-A programs had
not been sufficiently challenging academically; had not been well integrated with the
“regular” instructional programs of participants; and had required extensive pupil
8 See Education Commission of the States, Estimated Per-Student Spending on Statewide
Testing Programs, Oct. 2001. Available at [http://www.ecs.org].
9 Lawrence O. Picus, Estimating the Costs of Student Assessment in North Carolina and
Kentucky: A State-Level Analysis, CRESST Technical Report 408, Feb. 1996.

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CRS-5
testing that was of little instructional or diagnostic value, and was not linked to the
curriculum to which pupils were exposed. Further, the legislation attempted to make
Title I-A tests more meaningful by using state assessments to determine whether
schools and LEAs are making “adequate yearly progress” (AYP) toward meeting
state achievement standards.10
States were given several years to meet the IASA requirements. In particular,
the full system of standards and assessments was not required to be in place until the
2000-2001 school year and, as is discussed in detail below, only a minority of states
met that deadline. Thus, in its debates on the NCLBA in 2001, the Congress
considered not only the expanded assessment requirements proposed by the Bush
Administration, but also the implementation status of requirements adopted in 1994.
Under the ESEA, as amended first by the IASA of 1994 and later by the
NCLBA of 2001, states wishing to remain eligible for Title I-A grants are required
to develop or adopt curriculum content standards as well as academic achievement
standards and assessments tied to the standards. In general, these standards and
assessments are to be applicable to all LEAs, schools, and pupils statewide. One
major exception to this general policy is that if no agency or entity in a state has
authority to establish statewide standards or assessments (as is the case for Iowa and
possibly Nebraska), then the state may adopt either: (a) statewide standards and
assessments applicable only to Title I-A pupils and programs, or (b) a policy
providing that each LEA receiving Title I-A grants will adopt standards and
assessments which meet the requirements of Title I-A and are applicable to all pupils
served by each such LEA. Another possible exception, which is discussed further
below, is that ED regulations would allow local variation in the assessments used for
at least some grade levels. Thus, it should be kept in mind that “state systems of
standards and assessments,” as referred to frequently below, may not in some cases
be uniform statewide.
In order to comply with the provisions of ESEA Title I-A, state systems of
standards and assessments are required to meet a number of specific statutory
requirements, as follows:
1. Standards and assessments must be developed or adopted at least in the
subjects of mathematics and reading/language arts by the 2000-2001
school year.11 Standards are to be adopted in science by the 2005-2006
school year, and assessments in science by the 2007-2008 school year.
2. The standards and assessments used to meet the Title I-A eligibility
requirements must be the same as those applied to all public school pupils
in the state (with the two possible exceptions discussed above).
3. The content standards are to specify what pupils are expected to know and
be able to do, and are to be “coherent and rigorous.”
10 See CRS Report RS21094, Adequate Yearly Progress Under ESEA Title I: Estimates for
Three States Based on Specifications in H.R. 1 Conference Agreement, by David P. Smole
and Wayne C. Riddle.
11 As is discussed later in this report, most states did not meet this deadline, established in
the 1994 IASA.

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CRS-6
4. Achievement standards must establish at least three performance levels for
all pupils — advanced, proficient, and partially proficient (or basic).
5. Assessments must be aligned with state content and achievement standards.
6. Assessments in mathematics, reading and, beginning in 2007-2008, science
must be administered annually to students in at least one grade in each of
three grade ranges — grades 3-5, grades 6-9, and grades 10-12. In
addition, assessments in mathematics and reading must be administered to
pupils in each of grades 3-8 beginning in the 2005-200612 school year, if
certain minimum levels of annual federal funding are provided for state
assessment grants.13
7. All pupils in the relevant grades who have attended schools in the LEA for
at least 1 year must participate in the assessments.14
8. LEP pupils are to be assessed in a valid and reliable manner and provided
with “reasonable” accommodations. To the extent practicable, LEP pupils
are to be assessed in the language and form most likely to yield accurate
and reliable information on what they know and can do in academic
content areas (in subjects other than English itself). However, pupils who
have attended schools in the United States (excluding Puerto Rico) for 3
or more consecutive school years are to be assessed in English.15
9. “Reasonable” adaptations and accommodations are to be provided for
students with disabilities, consistent with the provisions of the Individuals
with Disabilities Education Act (IDEA) where such adaptations or
accommodations are necessary to measure the achievement of those
students relative to state standards.
10. The assessment system must involve multiple approaches with up-to-date
measures of student performance, including measures that assess higher
order thinking skills and understanding.
11. Assessments must be used for purposes for which they are valid and
reliable, and they must meet relevant, nationally recognized, professional
and technical standards. In particular, the state educational agency (SEA)
must provide evidence from a test publisher or other relevant source that
the assessments are of adequate technical quality for the purposes required
under Title I-A.
12. The assessment system must produce individual student interpretive and
diagnostic reports that are provided to parents, teachers, and principals as
soon as is “practically possible” after the assessments are administered. It
12 There is explicit authority for a one-year delay of this requirement in cases of exceptional
or uncontrollable circumstances.
13 There is some obvious overlap in these requirements — e.g., states meeting the
requirement for assessments in reading and math at three grade levels already meet the
requirements for 1 or 2 of grades 3-8.
14 Separately, the provisions regarding AYP provide that at least 95% of the pupils in each
demographic group within each school must be included in the assessments in order for the
school to meet AYP requirements. Pupils may be excluded from school-level score
reporting and accountability if they have attended a specific school for less than one year.
15 LEAs may continue to administer assessments to pupils in non-English languages for up
to five years if, on a case-by-case basis, they determine that this would likely yield more
accurate information on what the students know and can do.

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CRS-7
must also enable “itemized score analyses” to be produced and reported to
LEAs and schools, so that specific academic needs may be identified.
13. The assessment system must enable results for each state, LEA, and school,
to be disaggregated (i.e., reported separately) by gender, major racial and
ethnic groups, English proficiency status, migrant status, students with
disabilities as compared to students without disabilities, and economically
disadvantaged students as compared to students who are not economically
disadvantaged. However, such disaggregation is not required in cases
where the number of pupils in a group would be too small to yield
statistically reliable information or where personally identifiable
information would be revealed.
14. Assessments must objectively measure academic achievement, knowledge,
and skills, and not assess personal or family beliefs and attitudes, or
disclose personally identifiable information.
15. Assessment results must be provided to LEAs, schools, and teachers before
the beginning of the subsequent school year.
16. In addition to the general assessment system described in 1-15 above, states
are to provide that their LEAs will annually assess the English language
proficiency of their LEP pupils — including pupils’ oral, reading, and
writing skills — beginning in the 2002-2003 school year.16
Finally, as is discussed further below, states receiving grants under ESEA Title
I-A must participate in biennial state-level administrations of the National
Assessment of Educational Progress in 4th and 8th grade reading and mathematics,
beginning in the 2002-2003 school year. The timing of several of the key
requirements listed above is summarized in the following table.
16 A one-year waiver of this requirement is specifically authorized in cases of exceptional
or uncontrollable circumstances.

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CRS-8
Schedule for Implementation of All Assessment Requirements
School Year 2000-2001
! States were to have adopted content and performance standards, plus
assessments linked to these, at three grade levels in mathematics and
reading. These requirements were included in the 1994 reauthorization
of the ESEA. (As of the date of this report, 21 states fully met these
requirements.)
School Year 2001-2002
! No new waivers of the deadlines for meeting the “1994 requirements”
could be granted after April 8, 2002.
School Year 2002-2003
! States were required to begin to annually assess the English language
proficiency of LEP pupils (possible one-year waiver for “exceptional
or uncontrollable circumstances”).
! States were first required to participate in biennial administration of
NAEP.
! Annual report cards on state and LEA school systems and schools were
required to be published (with a possible one year waiver authorized for
“exceptional or uncontrollable circumstances”).
! States were required to begin reporting annually to ED on progress
toward new assessment and related requirements under the NCLBA.
May 1, 2003
! States were required to include in their ESEA consolidated application
academic content standards in reading/language arts and mathematics
for each of grades 3-8, as well as a detailed timeline for meeting the
standard and assessment requirements listed below.
School Year 2005-2006
! Standards-based assessments in reading and mathematics must be
administered to pupils in each of grades 3-8 (possible waivers if
minimum amounts are not appropriated for state assessment grants or
for “exceptional or uncontrollable circumstances”).
! States must adopt content standards at three grade levels in science.
School Year 2007-2008
! States must begin to administer assessments at three grade levels in
science.

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CRS-9
Limits on ED Influence Over State Standards and Assessments.
Several statutory constraints have been placed on the authority of the Secretary of
Education in enforcing these standard and assessment requirements. First, the ESEA
contains a provision — similar to others found in the Department of Education
Organization Act and the General Education Provisions Act — stating that nothing
in ESEA Title I shall be construed to authorize any federal official or agency to
“mandate, direct, or control a State, local educational agency, or school’s specific
instructional content, academic achievement standards and assessments, curriculum,
or program of instruction” (Section 190517). Second, states may not be required to
submit their standards to the U.S. Secretary of Education (Section 1111(b)(1)(A)) or
to have their content or achievement standards approved or certified by the federal
government (Section 9527(c)) in order to receive funds under the ESEA, other than
the (limited) review necessary in order to determine whether the state meets the Title
I-A requirements. Finally, no state plan may be disapproved by ED on the basis of
specific content or achievement standards or assessment items or instruments
(Section 1111(e)(1)(F)).
State Assessment Grants. The ESEA authorizes (in Title VI-A-1) annual
grants to the states to help pay the costs of meeting the Title I-A standard and
assessment requirements added by the NCLBA (i.e., the newly-required assessments
in science at three grade levels and at grades 3-8 in mathematics and reading). These
grants may be used by states for development of standards and assessments or, if
these have been developed, for assessment administration and such related activities
as developing or improving assessments of the English language proficiency of LEP
pupils. The amount authorized to be appropriated for these state assessment grants,
plus grants for development of enhanced assessment instruments (see below) is $490
million for FY2002 and “such sums as may be necessary” for FY2003-2007.
The state assessment requirements that were newly adopted under the NCLBA
are contingent upon the appropriation of minimum annual amounts for these state
assessment grants. The administration, but not the development, of grade 3-8 and
science assessments may be delayed by 1 year for each year that the following
minimum amounts are not appropriated: FY2002 — $370 million, FY2003 — $380
million, FY2004 — $390 million, and each of FY2005-2007 — $400 million. For
example, if an amount less than $400 million were appropriated for state assessment
grants for FY2005, the deadline for state administration of tests in reading and
mathematics for each of grades 3-8 would move from 2005-2006 to 2006-2007. For
FY2002 and FY2003, the minimum amounts were appropriated for these grants
($370 and $380 million, respectively). For FY2004, the minimum ($390 million)
will be appropriated, assuming that the Department is able to follow through on a
proposed transfer of $710,000 from a different account (i.e., the amount initially
appropriated was $710,000 below the threshold).
The state assessment grants are to be allocated as follows: after reservation of
0.5% of the total for the Outlying Areas and 0.5% for the Bureau of Indian Affairs,
each state will first receive $3 million. Remaining funds will be allocated among the
17 Similar, although somewhat less specific, language may be found in ESEA Section
9526(b)(1) and Section 9527(a).

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CRS-10
states in proportion to their number of children and youth aged 5-17 years. This
allocation formula reflects an implicit assumption that costs of assessment
development are partially similar for all states, regardless of their size, and partially
related to the size of the state’s school age population.
The ESEA also authorizes competitive grants to states for the development of
enhanced assessment instruments. Aided activities may include efforts to improve
the quality, validity, and reliability of assessments beyond the levels required by Title
I-A, to track student progress over time, or to develop performance or technology-
based assessments. Funds appropriated each year for state assessment grants which
are in excess of the “trigger” amounts for assessment development grants listed
above are to be used for enhanced assessment grants; for FY2002, $17 million was
available for this purpose. In February 2003, grants to nine states were announced.
While each of these grants was made to a single state, each grantee has a number of
“collaborators,” including other states as well as, in some cases, LEAs, universities,
or educational research organizations. The grants range from $1.4 to $2.3 million.
The amount available for assessment enhancement grants was $4,484,000 under the
FY2003 appropriation; no funds will be available for assessment enhancement grants
under the FY2004 appropriation.
Finally, the NCLBA authorizes a study of the impact of the expanded Title I-A
assessment requirements. The Secretary of Education is authorized to use the lesser
of 15% of total appropriations for Title I, Part E (National Assessment of Title I) or
$1.5 million per year to contract for an independent study of “assessments used for
State accountability purposes,” including the correlations between such assessments
and pupil achievement, instructional practices, dropout and graduation rates, and
school staff turnover rates; effects on different groups of pupils, such as LEP pupils,
pupils from low-income families, or pupils with disabilities; and relationships
between accountability systems and exclusion of pupils from state assessments.
National Assessment of Educational Progress18
The National Assessment of Educational Progress (NAEP) is a federally funded
series of assessments of the academic performance of elementary and secondary
students in the United States. NAEP tests generally are administered to public and
private school pupils in grades 4, 8, and 12 in a variety of subjects, including reading,
mathematics, science, writing and, less frequently, geography, history, civics, social
studies, and the arts. NAEP assessments have been conducted since 1969.
NAEP is administered by the National Center for Education Statistics (NCES),
with oversight and several aspects of policy set by the National Assessment
Governing Board (NAGB), both within the U.S. Department of Education. Since
1983, the assessment has been developed primarily under a cooperative agreement
with the Educational Testing Service (ETS), a private, non-profit organization which
also develops and administers such assessments as the SAT. A private business firm
— Westat, Inc. — carries out much of the test administration activities. Two other
18 For additional information on NAEP, see CRS Report 98-348, National Assessment of
Educational Progress: Background and Reauthorization Issues, by Wayne Riddle.

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CRS-11
private firms — National Computer Systems and American Institutes for Research
— distribute and score the assessments, and develop the background questionnaires,
respectively.
NAEP consists of two separate groups of tests. One is the main assessment, in
which test items (questions) are revised over time in both content and structure to
reflect more current views and practices. The main assessment also reports pupil
scores in relation to performance levels — standards for pupil achievement that are
based on score thresholds set by NAGB. The performance levels are considered to
be “developmental,” and are intended to place NAEP scores into context. They are
based on determinations by NAGB of what pupils should know and be able to do at
a basic (“partial mastery”), proficient (“solid academic performance”), and advanced
(“superior performance”) level with respect to challenging subject matter.
The second group of NAEP tests form the long-term trend assessment, which
monitors trends in math and reading achievement.19 The tests in each subject area
have not changed in content or structure since they were originally developed in
1969, making it possible to reliably compare results from year to year. However,
many have expressed concerns that the long-term trend assessment questions may be
increasingly disconnected from what pupils are actually taught with the passage of
decades of time.20 Since the long-term trend assessment is not involved with the
ESEA Title I-A assessment requirements, it will not be discussed further.
All NAEP tests are administered to only a sample of pupils, and the tests are
designed so that no pupil takes an entire NAEP test. The use of sampling is intended
to minimize both the costs of NAEP and test burdens on pupils. It also makes it
possible to include a broad range of items in each test. Since no individual pupil
takes an entire NAEP test, it is impossible for NAEP to report individual pupil
scores.21 It is intended that NAEP tests be administered to a representative sample
of all pupils in public and private schools, although there has been ongoing debate
over whether LEP pupils or those with disabilities are adequately represented and
whether appropriate accommodations or adaptations are being provided for them.
The frameworks for NAEP tests provide a broad outline of the content on which
pupils are to be tested. Frameworks are developed by NAGB through a national
consensus approach involving teachers, curriculum specialists, policymakers,
business representatives, and the general public. In developing the test frameworks,
national and various standards are taken into consideration, but the frameworks are
19 Additional long-term trend assessments in writing and science were last administered in
1999. There is no current plan to administer the writing assessment in the future; revised
science assessment test items are being developed, and may be administered in the future.
20 An NAGB policy adopted in May 2002 addresses this concern with respect to the science
assessment, and some changes will be made to the content of the science assessment before
its next administration.
21 The Voluntary National Test proposal of the Clinton Administration was to develop
individual versions of the NAEP 4th grade reading and 8th grade math tests (see CRS Report
97-774, National Tests: Administration Initiative, by Wayne Riddle). Activity related to
this proposal has been terminated.

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CRS-12
not intended to specifically reflect any particular set of standards. In addition, pupils
and school staff fill out background questionnaires. The NAEP statute limits the
range of background information that may be collected to data “directly related to the
appraisal of academic achievement, and to the fair and accurate presentation of such
information” (Section 303(b)(5)(B)) plus demographic data on pupil race, ethnicity,
socioeconomic status, disability, LEP status, and gender.
State NAEP. While NAEP, as currently structured, cannot provide assessment
results for individual pupils, the levels at which scores could be provided — the
Nation overall, states, LEAs, or schools — depend on the size and specificity of the
sample group of pupils tested. NAEP has always provided scores for the Nation as
a whole and four multistate regions. Beginning in 1990, NAEP has conducted a
limited number of state-level assessments in 4th and 8th grade mathematics and
reading. Only the main NAEP, not the long-term trend assessment, is administered
at the state level. Under state NAEP, the sample of pupils tested in a state is
increased in order to provide reliable estimates of achievement scores for pupils in
each participating state.
Until enactment of the NCLBA (see below), participation in NAEP was
voluntary for states,22 the additional cost associated with state NAEP administration
was borne by the states and, after participating in any state NAEP test, states could
separately decide whether to allow release of NAEP results for their state. As with
other main NAEP tests, state NAEP scores are reported with respect to performance
levels — basic, proficient, and advanced — developed by NAGB. In general,
approximately 40 states participated in state-level NAEP assessments between 1990
and 2000, and all states except one (South Dakota) participated in state NAEP at least
once during this period.
In addition to this administration of NAEP at a state level, FY2002
appropriations legislation provided for a Trial Urban Assessment of achievement in
reading and writing — experimental administration of NAEP to expanded pupil
samples in a limited number of large urban LEAs. The assessment was administered
to extended samples of pupils in 2002 in Atlanta, Chicago, the District of Columbia,
Houston, Los Angeles, and New York City, as part of the regular state and national
assessment activities.23
NAEP Provisions in the No Child Left Behind Act. The NCLBA
provides that all states wishing to remain eligible for grants under ESEA Title I-A
will be required to participate in state NAEP tests in 4th and 8th grade reading and
mathematics, which are to be administered every two years. The costs of testing
expanded pupil samples in the states will now be paid by the federal government. An
unstated, but implicit, purpose of this new requirement is to “confirm” trends in pupil
22 Once states decided to participate they were not prohibited from mandating participation
by LEAs or schools under state and local law, although it appears that most states have
always attempted to obtain LEA and school participation through voluntary recruitment.
23 For a description of the Trial Urban Assessment, and available results, see
[http://nces.ed.gov/nationsreportcard/reading/results2002/districtresults.asp].

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CRS-13
achievement, as measured by state-selected assessments.24 The results from the
initial state NAEP assessment in 4th and 8th grade reading and mathematics involving
all 50 states were released in November 2003.
In addition, the authorizing statute for NAEP (at that time, Sections 411-412 of
the National Education Statistics Act, or NESA) was almost completely rewritten in
the NCLBA. While most of the new provisions are essentially the same as previous
law, the statute has been amended in several respects. It is explicitly provided that
pupils in home schools may not be required to participate in NAEP tests. Agents of
the federal government are prohibited from using NAEP assessments to influence
state or LEA instructional programs or assessments. Mechanisms are provided for
limited public access to NAEP questions and test instruments and for review of
complaints about NAEP tests. Provisions regarding NAGB are revised to specify
that at least two members must be parents who are not employed by any educational
agency. Regarding the release of state NAEP results, participating states still may
choose not to allow such release but only with respect to state NAEP tests other than
those required for Title I-A purposes.
There are conflicting statutory and regulatory provisions regarding participation
in NAEP tests by LEAs and schools which may be selected for NAEP test
administration. The NCLBA itself explicitly provides that participation in NAEP
tests is voluntary for all pupils and schools, but it contains conflicting provisions
regarding voluntary participation by LEAs. The NAEP authorization statute (recently
redesignated as Section 303 of the Education Sciences Reform Act by P.L. 107-279)
states that participation is voluntary for LEAs as well, but ESEA Title I-A provides
that the plans of LEAs receiving aid under that program must include an assurance
that they will participate in state NAEP tests if selected (Section 1112(b)(1)(F)).
Finally, program regulations published by the U.S. Department of Education
(Federal Register, Dec. 2, 2002) require both LEAs which receive Title I-A grants,
and schools within such LEAs, to participate in NAEP if selected to be among the
sample tested (34 CFR 200.11(b)).
The NCLBA authorizes funds specifically for state NAEP tests for fiscal years
2002-2007 — $72 million for FY2002 and “such sums as may be necessary” for the
succeeding years. The NCLBA did not extend the authorization for NAEP overall.
However, Title III of P.L. 107-279, the National Assessment of Educational Progress
Authorization Act, has recently extended the general NAEP authorization through
FY2008. The authorization level is $107.5 million for all NAEP activities (including
state assessments), plus $4.6 million for NAGB, for FY2003, and “such sums as may
be necessary” for each of FY2004-08. P.L. 107-279 also redesignates NAEP’s
24 The role of NAEP in “confirming” state test score trends is not explicitly stated in the
final statute, but is explicitly mentioned in ED documents, such as the following:
“Confirming Progress — Under H.R. 1 a small sample of students in each state will
participate in the 4th and 8th grade National Assessment of Educational Progress (NAEP) in
reading and math every other year in order to help the U.S. Department of Education verify
the results of statewide assessments required under Title I to demonstrate student
performance and progress.” See Using the National Assessment of Educational Progress
to Confirm State Test Results, prepared by an Ad Hoc Committee on Confirming Test
Results, National Assessment Governing Board, at [http://www.nagb.org].

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CRS-14
statutory language as Title III of the Education Sciences Reform Act of 2002
(ESRA), but does not otherwise directly or substantially amend the provisions.25
For FY2002, the total amount appropriated for all NAEP and NAGB activities
was $111.553 million. This was a large increase over the FY2001 level of $40
million, primarily as a result of the shift in responsibility for state NAEP costs from
states to the federal government. The FY2002 appropriation also included $2.5
million for the Trial Urban Assessment described above. The total amount
appropriated for NAEP and NAGB was $94.767 million for FY2003 and $94.763
million for FY2004.
Status of Implementation of the
Assessment Requirements
The scheduled deadlines for implementation of major assessment requirements
under ESEA Title I-A are outlined earlier in this report. Thus far, almost all
implementation activity has taken place with respect to requirements adopted initially
in the 1994 IASA and continued under the NCLBA. The process of implementing
the 1994 requirements is still incomplete.
ED Review of Evidence Regarding Assessments to Meet the
“1994 Requirements” Under Title I-A
In their reviews of state systems of standards and assessments, peer reviewers
(specialists in the areas of standards and assessments who are not federal employees)
and ED staff have been considering only various forms of “evidence” submitted by
the states which are intended to document that state standards and assessments meet
the specific Title I-A requirements outlined earlier in this report — i.e., they are not
reviewing the assessments themselves.26 Examples of such “evidence” include
results from studies, by test publishers or others, of the degree of alignment between
state standards and assessments; evaluations of the validity, reliability, or other
aspects of the technical quality of state assessments; state policies on providing
native language testing or other accommodations for LEP pupils, or alternate
assessments or other accommodations for pupils with disabilities; provisions for
reporting scores by disaggregated pupil groups; or data on the extent of actual
participation in assessments of LEP pupils or pupils with disabilities.
25 See CRS Report RL31353, Educational Research, Statistics, and Evaluation: Legislation
in the 107th Congress, by Paul M. Irwin.
26 Peer reviewers have relied primarily upon the Department’s Peer Reviewer Guidance for
Evaluating Evidence of Final Assessments Under Title I of the Elementary and Secondary
Education Act (available at [http://www.ed.gov/policy/elsec/guid/cpg.pdf]) to guide their
activities. While this document was published before enactment of the NCLBA, it remains
applicable, at least for the present, mainly because most applicable underlying requirements
are essentially unchanged.

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CRS-15
All of the reviews conducted thus far focus primarily on the “1994
requirements” of ESEA Title I-A, because the deadlines for meeting the expanded
requirements under the NCLBA have not yet occurred. However, aside from the
specifics regarding grade levels and subject areas, these reviews are applicable to
ESEA Title I-A as amended by the NCLBA, since the “1994 requirements” also must
be met under the revised statute. In addition, these “1994 reviews” are the best
currently available indication of how ED staff will implement the expanded
assessment requirements as those deadlines approach.
Status of Review of State Assessment Systems with Respect to the “1994
Requirements” Under ESEA Title I-A
(as of the publication date of this report)
Assessments Fully Approved (21): Colorado, Connecticut, Delaware, Indiana,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, New
Hampshire, New York, North Carolina, Oregon, Pennsylvania, Rhode Island,
Texas, Vermont, Virginia, Wyoming
Timeline Waiver Granted (26): Alaska, Arizona, Arkansas, California, Florida,
Georgia, Hawaii, Illinois, Iowa, Michigan, Minnesota, Mississippi, Nebraska,
Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma,
Puerto Rico, South Carolina, South Dakota, Tennessee, Utah, Washington,
Wisconsin
Compliance Agreement Negotiated (5): Alabama, District of Columbia, Idaho,
Montana, West Virginia
As of the publication date of this report, 21 states fully met all of the pre-
NCLBA requirements regarding standards and assessments (see box above).
Twenty-six of the states that had not met these requirements have been granted
waivers until fully meeting them within a specified period of time. These waivers
have been granted under authority in Title XIV-D of the 1994 version of the ESEA
or Title IX-D of the current ESEA.27 For the remaining five states, which were found
to have made the least progress toward meeting the “1994 requirements,” ED has
negotiated compliance agreements.28 According to ED, “A compliance agreement
allows a state to continue to receive federal education funds while it comes into
27 The pre-NCLBA version also specifically authorized the Secretary of Education to waive
the deadline for assessment implementation for an additional year if necessary to correct
problems that were identified in field testing; the current ESEA authorizes specific waivers
for up to 1 year for full implementation of the new requirements for annual assessments in
grades 3-8, and assessment of the English language proficiency of LEP pupils, in cases of
“exceptional and unforeseen circumstances,” and authorizes states to delay implementation
of the grade 3-8 requirement if minimum amounts are not appropriated for state assessment
grants.
28 The compliance agreements for 4 of the 5 states have been published in the Federal
Register on Feb. 20 (Alabama and Idaho), Feb. 21 (West Virginia), and Mar. 24 (Montana),
2003.

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CRS-16
compliance under specific terms, conditions, and a timeline spelled out in the written
agreement, with three years as the maximum time allowed.”29
Both before and after the NCLBA, the ESEA authorized sanctions for states
failing to meet the deadlines for adopting standards and assessments. The 1994
version provided that the Secretary of Education may withhold funds for state
administration plus program improvement from states failing to meet any of the Title
I-A state plan requirements, including those related to standards and assessments
(Section 1111(d)(2)). As amended by the NCLBA, the ESEA provides that the
Secretary shall withhold 25% of funds otherwise available for state administration
and program improvement activities from states which fail to meet the 1994
requirements, and may withhold additional state administration funds for failure to
meet new assessment requirements adopted under the NCLBA. In addition, states
which persistently and thoroughly fail to meet the standard and assessment
requirements over an extended period of time potentially may be subject to
elimination of their Title I-A grants altogether, since they would be out of compliance
with a basic program requirement. In spite of these authorized or potential sanctions,
no state has yet experienced any reduction in funds or other negative consequences
(at least with respect to the Title I-A program specifically) due to failure to meet any
deadline related to the Title I-A standard and assessment requirements.
Common Problem Areas Found in Reviews of State Assessment
Systems with Respect to the “1994 Requirements”. The peer reviews of
state assessment systems conducted thus far have identified a number of common
problem areas, as indicated in “decision letters” from ED officials to the states.30
These are: (a) lack of adequate inclusion, accommodation, and incorporation of
alternate assessments for LEP and disabled pupils; (b) insufficient documentation of
the technical quality of assessments (i.e., their reliability, alignment, validity, etc.),
especially the degree of alignment of assessments with content and pupil
performance/achievement standards; and (c) inadequate timelines for completion and
implementation of the assessments.
The first of these three problem areas has received the greatest attention. The
revised ESEA, ED’s “Summary Guidance on the Inclusion Requirement for Title I
Final Assessments,” as well as other letters and policy guidance documents, indicate
that the only students who should be excluded from assessments are those who have
attended public schools in a LEA for less than one year. Otherwise, all pupils should
be included in both the assessments and associated accountability systems.31 Where
appropriate, accommodations (for example, extended time to complete an
assessment) or alternate assessments32 should be provided for pupils with disabilities.
29 U.S. Department of Education press release dated Apr. 8, 2002.
30 These are available at [http://www.ed.gov/offices/OESE/saa/state_chart.html].
31 Pupils who have attended schools in a LEA for one year or more, but who have attended
a particular school for less than one year, may be excluded from accountability
determinations for the school (but not for the LEA overall).
32 Section 612 (a)(17) of the Individuals with Disabilities Education Act (IDEA) requires
(continued...)

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CRS-17
LEP pupils should be assessed in the language most likely to yield valid results,
except that those who have attended schools in the United States (other than Puerto
Rico) for 3 or more years must generally be assessed in English, and they should be
provided with other accommodations (e.g., extended time or use of bilingual word
lists or dictionaries) where appropriate, as determined on an individual basis. With
respect to inclusion of LEP pupils and those with disabilities, ED is reviewing
“evidence” not only of state policies but also practices (i.e., actual rates of
participation by LEP and disabled pupils). Many of the states whose assessments
have not yet been approved have been informed that they need to make changes
regarding assessment of or reporting of scores for LEP and/or disabled pupils.
Interpretation by ED of the Expanded Standard and
Assessment Requirements of the No Child Left Behind Act
Title I-A Standard and Assessment Requirements. On July 5, 2002,
ED published regulations on the Title I-A assessment requirements newly adopted
under the NCLBA.33 Under the provisions of ESEA Title I, Part I, ED was required
to establish a “negotiated rulemaking” procedure, as authorized under the Negotiated
Rulemaking Act of 1990, in developing regulations regarding the Title I-A standards
and assessments requirements.
Under negotiated rulemaking, ED solicits advice from “representatives of
Federal, State, and local administrators, parents, teachers, paraprofessionals, and
members of local school boards or other organizations involved with the
implementation and operation of” Title I-A programs (Section 1901(b)(1)), after
which an initial draft of proposed regulations is prepared. ED selects representatives
of these organizations to participate in a negotiated rulemaking process, to include
persons “from all geographic regions of the United States, in such numbers as will
provide an equitable balance between representatives of parents and students and
representatives of educators and education officials” (Section 1901(b)(3)(B)).
The selected representatives are to discuss the Department’s draft of proposed
regulations, and make any changes to this, consistent with the authorizing statute, on
which they can reach consensus. The NCLBA provides that “published proposed
regulations shall conform to agreements that result from negotiated rulemaking”
unless “the Secretary reopens the negotiated rulemaking process or provides a written
explanation to the participants involved in the process explaining why the Secretary
decided to depart from, and not adhere to, such agreements” (ESEA Title I, Section
1902(a)). Thus, ED is encouraged, but not required, to follow the recommendations
of the negotiated rulemaking panel, and the process may be viewed primarily as an
32 (...continued)
states to develop guidelines for the administration of alternate assessments for pupils with
disabilities who cannot participate in state- and LEA-wide assessment programs.
33 Federal Register, July 5, 2002, pp. 45038-45047. As is discussed below, proposed
amendments to these regulations were published in the Federal Register on Mar. 20, 2003.

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additional mechanism, beyond publication for comments in the Federal Register, of
obtaining input on proposed regulations from concerned organizations.34
Significant features of the Department’s final regulations — developed through
the negotiated rulemaking process35 and published in the Federal Register on July 5,
2002 — are described below. In general, the regulations repeat statutory
requirements, while clarifying the following points: (a) content standards can cover
multiple grades, but they must include grade-specific “content expectations,” and
achievement standards must be grade-specific; (b) high school standards must cover
what all high school students are expected to know and be able to do; (c) assessments
may include extended or essay response items or ask a pupil to analyze text or
express opinions; (d) assessments may include either CRTs or NRTs, although any
NRTs used must be augmented to “measure accurately the depth and breadth of” the
state’s content standards, provide results expressed in terms of the state’s
achievement standards, and be “designed to provide a coherent system across grades
and subjects;” (e) state assessment systems may include assessments which vary by
LEA in some grades,36 and any LEA-selected assessments used to meet the Title I-A
requirements must be “equivalent to one another and to state assessments, where they
exist, in their content coverage, difficulty, and quality,” “have comparable validity
and reliability,” provide “consistent determinations of the annual progress of schools
and LEAs within the state,” and produce results which are sufficiently comparable
that they can be aggregated; (f) LEP, migrant, and homeless pupils are to be included
in the assessment system at all times; (g) states are to determine the minimum
number of students from specific demographic groups to include in public reports or
34 ED’s implementation of the negotiated rulemaking requirement was challenged in federal
court. Four organizations (The Center on Law and Education, National Coalition for the
Homeless, National Law Center on Homelessness, and Designs for Change) and an
individual parent charged that parents and students were inadequately represented in the
process, particularly in view of the language requiring an “equitable balance between
representatives of parents and students and representatives of educators and education
officials.” The negotiated rulemaking panel included 17 persons; while only 2 of the 17
persons represented parents specifically, several of the others were parents in addition to
representing other groups. On May 22, 2002, the United States District Court for the
District of Columbia ruled in favor of the Department of Education and the case was
dismissed. An analysis of the legal issues associated with this suit is beyond the scope of
this report.
35 In the negotiated rulemaking process, which took place in mid-March 2002, the initial
draft proposed regulations were changed in very few significant respects. The primary
changes included: (a) it was further clarified that the assessment requirements apply only
to public schools and their pupils, not to private (or home) schools; (b) for purposes of
disaggregated score reporting, “pupils with disabilities” would be only those identified
under the IDEA (this would exclude pupils identified only under Section 504 of the
Rehabilitation Act); and (c) the criteria to be met by varying local assessments was changed
from “equivalent content, rigor, and quality” and “concurrent validity” to “equivalent to one
another in their content coverage, difficulty, and quality,” and “comparable validity and
reliability.” These changes constituted essentially fine-tuning of certain points of
clarification in the draft proposed regulations.
36 In states that lack authority to require the use of the same assessments statewide (only),
the assessment system may consist entirely of locally selected assessments.

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CRS-19
accountability calculations, to maintain statistical reliability and protect privacy; (h)
the requirement for dissemination of “itemized score analyses” does not require the
release of individual test items; (i) states must provide evidence, from test publishers
or other “relevant sources,” that their assessment systems are of adequate technical
quality to meet each purpose required under Title I-A, and this information can be
made available by ED to the public, consistent with applicable federal laws on
disclosure of information; (j) the assessment requirements apply only to public
schools and their pupils, not to private (or home) schools, although the achievement
of private school pupils who participate in Title I-A must be assessed in some
manner; (k) while states must develop achievement (as well as content) standards in
science by 2005-2006, they need not develop specific cut scores for the achievement
levels until 2007-2008, when the assessments must be implemented; and (l) for
purposes of disaggregated score reporting, “pupils with disabilities” are only those
identified under the IDEA,37 although all pupils with disabilities, whether identified
under the IDEA or Section 504 of the Rehabilitation Act, are to be included in
assessments and provided with appropriate accommodations.
Recent ED Policy Developments Regarding Participation Rates
Plus Treatment of Limited English Proficient Pupils and Certain Pupils
With Disabilities in Assessments and AYP Determinations. ED officials
have recently published regulations and other policy guidance on participation rates
plus the treatment of limited English proficient pupils and certain pupils with
disabilities in assessments and the calculation of AYP for schools and LEAs, in an
effort to provide additional flexibility and reduce the number of schools and LEAs
identified as failing to make AYP. On March 29, 2004, ED announced that schools
could meet the requirement that 95% or more of pupils (all pupils as well as pupils
in each designated demographic group) participate in assessments (in order for the
school or LEA to make AYP) on the basis of average participation rates for the last
two or three years, rather than having to post a 95% or higher participation rate each
year. In other words, if a particular demographic group of pupils in a school has a
93% test participation rate in the most recent year, but had a 97% rate the preceding
year, the 95% participation rate requirement would be met. In addition, the new
guidance would allow schools to exclude pupils who fail to participate in
assessments due to a “significant medical emergency” from the participation rate
calculations. The new guidance further emphasizes the authority for states to allow
pupils who miss a primary assessment date to take make-up tests, and to determine
the minimum size for demographic groups of pupils to be considered in making AYP
determinations (including those related to participation rates). According to ED, in
some states, as many as 20% of the schools failing to make AYP did so on the basis
of assessment participation rates alone. It is not known how many of these schools
would meet the new, somewhat more relaxed standard.
On February 19, 2004, ED officials announced two new policies with respect
to LEP pupils.38 First, with respect to assessments, LEP pupils in their first year of
attending schools in the United States must participate in English language
proficiency and mathematics tests. However, the participation of such pupils in
37 This would exclude pupils identified only under Section 504 of the Rehabilitation Act.
38 See [http://www.ed.gov/nclb/accountability/schools/factsheet-english.html].

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CRS-20
reading tests, as well as the inclusion of these pupils’ test scores in AYP calculations,
is to be optional (i.e., schools and LEAs need not consider the scores of first year
LEP pupils in determining whether schools or LEAs meet AYP standards). Second,
in AYP determinations, schools and LEAs may continue to include pupils in the LEP
demographic category for up to two years after they have attained proficiency in
English. Both these options, if exercised, should increase average test scores for LEP
pupil groups, and reduce the extent to which schools or LEAs fail to meet AYP on
the basis of such pupils.
Additional regulations, addressing the application of the Title I-A standard and
assessment requirements to certain pupils with disabilities, were published in the
Federal Register on December 9, 2003 (pp. 68698-68708). These regulations amend
the regulations published on July 5, 2002, discussed above, as well as final
regulations on other aspects of Title I-A accountability requirements, published on
December 2, 2002.39 The purpose of these amendments is to clarify the application
of standard, assessment, and accountability provisions to pupils “with the most
significant cognitive disabilities.” Under the regulations, states and LEAs may adopt
alternative assessments based on alternative achievement standards — aligned with
the state’s academic content standards and reflecting “professional judgment of the
highest achievement standards possible” — for a limited percentage of pupils with
disabilities.40 When making AYP determinations, in general no more than 1.0% of
all pupils (approximately 9% of all pupils with disabilities) counted as having
achievement levels of proficient or above may consist of pupils taking such
alternative assessments based on alternative achievement standards at the state and
LEA level; there is no such limitation for individual schools. SEAs may request
from the U.S. Secretary of Education an exception allowing them to exceed the 1.0%
cap statewide, and SEAs may grant such exceptions to LEAs within their state.
In addition, ED published supplementary “non-regulatory draft guidance” on
these standard and assessment requirements, as well as those related to NAEP
participation, on March 10, 2003.41 This document is intended to provide guidance
which is consistent with that in the regulations discussed above, but is more detailed.
This guidance specifically provides that states must include in their ESEA
consolidated application/plan academic content standards in reading/language arts
and mathematics for each of grades 3-8, as well as a detailed timeline for meeting
subsequent deadlines for the development and implementation of assessments in
these subjects and grades, plus standards and assessments at three grade levels in
science, by May 1, 2003.
39 These are discussed in CRS Report RL31487, Education for the Disadvantaged:
Overview of ESEA Title I-A Amendments Under the No Child Left Behind Act, by Wayne
Riddle.
40 This limitation does not apply to the administration of alternative assessments based on
the same standards applicable to all students, for other pupils with (non-cognitive or less
severe cognitive) disabilities.
41 [http://www.ed.gov/topics/topicsTier2.jsp?&top=Policy&subtop=Policy+guidance&su
btop2=Elementary+%26+secondary+education&type=T].

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CRS-21
Steps Toward Implementation of the NAEP Requirements. In the
period since enactment of the NCLBA, a number of steps have been taken toward
implementation of the new requirements for state participation in NAEP. First, the
schedule for test administration has been revised to provide for administration of
state NAEP tests in 4th and 8th grade reading and mathematics every two years,
beginning with the 2002-2003 school year (spring 2003). Initial NAEP 4th and 8th
grade Reading and mathematics results for all states were released in November
2003. Further, as is discussed in a later section of this report, the NAGB has
published a report, “Using the National Assessment of Educational Progress to
Confirm State Test Results,” which examines issues related to the possible use of
state NAEP results to “confirm” trends in state assessment results.
At the same time, NAGB has established, and NCES has begun to implement,
several changes to NAEP policies and practices that are supportive of, or were
adopted primarily in response to, the expanded role for NAEP under the NCLBA.42
In recognition of the increased emphasis on measurement of performance gaps
among different demographic groups of pupils in the NCLBA, more questions are
being added at the upper and lower ends of the difficulty range, so that achievement
gaps among pupil groups can be more reliably measured. In addition, studies are
being conducted of possible ways to adjust sampling strategy in order to assure
adequate numbers of pupils in the various demographic groups referenced in the
NCLBA.
At the same time, a number of administrative adjustments are being
implemented that are intended to reduce required pupil sample sizes in the aggregate
(e.g., the main NAEP state and national pupil samples will be combined for the first
time), although samples of pupils will likely be increased in small and/or sparsely
populated states in order to enhance the precision of results. Efforts are being made
to minimize time demands, with a goal of reporting results of reading and
mathematics assessments within six months of test administration.
Special issues arise with respect to Puerto Rico, which is treated as a state under
ESEA Title I-A, but has not previously participated in state NAEP tests. A basic
problem is that selected NAEP mathematics tests have been translated into and
administered (to LEP pupils) in Spanish, but there are no Spanish versions of the
NAEP reading tests. Aside from the task of translation, questions arise about the
comparability of tests administered in different languages, especially in subjects such
as reading. Currently, NAGB plans to administer NAEP mathematics tests to 4th and
8th grade pupils in Puerto Rico beginning in 2003, but policy will not be established
regarding development and administration of NAEP reading tests there until a future
date.
Finally, state NAEP tests will now be administered by contractors, rather than
(as in the past) local teachers; there will be a full-time NAEP coordinator in every
state, and a State Service Center will be established to support these coordinators;
and NAGB has established procedures for limited public access to NAEP test items,
42 See NAGB Adopts Policies to Implement the No Child Left Behind Act of 2001 at
[http://www.nagb.org/], plus [http://nces.ed.gov/nationsreportcard/about/current.asp].

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CRS-22
and for submission, review, and resolution of complaints about NAEP tests by
parents and other members of the public.
Issues Regarding the Expanded ESEA Title I-A
Pupil Assessment Requirements
What Types of Assessments Would Meet the Expanded
Assessment Requirements?
As described above, the NCLBA includes explicit reference to a number of
criteria which state assessments must meet in order to comply with the ESEA Title
I-A requirements. However, the statute does not appear to directly or explicitly
address two major issues with respect to the assessments: (a) whether qualifying
state assessment systems must include only CRTs, or they may include a mix of
CRTs and NRTs, as long as the latter are modified to provide the required linkage to
state content and achievement standards; and (b) whether qualifying state assessment
systems must include only assessments which are the same statewide (except in states
which lack authority to require statewide assessments), or whether they may include
a mixture of statewide and locally varying assessments, as long as the latter are
deemed to be “equivalent” and adequately linked to state content and achievement
standards. It is stated that assessments must “be the same academic assessments used
to measure the achievement of all children” (Section 1111(b)(3)(C)(i)), but the
implications of this provision are ambiguous in cases where a state has no assessment
to measure the achievement of all children in certain grades.
Arguably, criterion-referenced assessments which are administered to all public
school pupils statewide in the relevant grades are most fully consistent with the
requirements which are explicitly stated in Title I-A. Only CRTs are designed
comprehensively and “from the ground up” to measure pupil achievement with
respect to specific content and academic achievement standards. While certain NRTs
may be somewhat related to state standards in their generic form, with substantial
overlap in test items with CRTs, and more closely related if modified specifically for
this purpose, as would be required under the regulations, they are nevertheless
initially designed primarily for the purpose of ranking and sorting pupils, not for the
purpose of determining whether pupils meet state-determined achievement levels.
In fact, it is not yet clear whether modified versions of assessments designed initially
as NRTs can indeed meet the Title I-A requirements for linkage with state content
and performance standards; some states, such as California, have attempted to meet
the 1994 assessment requirements through use of modified NRTs, but no such
assessments have yet been fully approved by ED.43
Similarly, assessments that are the same statewide would seem to most fully
meet the purposes of Title I-A, especially with respect to the use of assessment
43 However, ED has approved the assessment systems of three other states (Delaware,
Indiana, Missouri) where state-specific tests were reportedly designed from the beginning
to produce both criterion-referenced and norm-referenced results.

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CRS-23
results to determine whether schools or LEAs meet state standards of adequate yearly
progress (AYP). The best way to assure that assessments of the extent to which
pupils meet state achievement standards are equivalent and consistent statewide is
to use the same assessments throughout the state. This is especially important in
view of the use of assessment results to determine whether schools or LEAs meet
AYP standards, and the need to aggregate local results to determine whether states
overall meet such requirements. Establishing equivalence among varying local tests
might be possible, but is likely to be very difficult. According to a recent National
Research Council report, “Under limited conditions it may be possible to calculate
a linkage between two tests, but multiple factors affect the validity of inferences that
may be drawn from the linked scores. These factors include the context, format, and
margin of error of the tests; the intended and actual uses of the tests; and the
consequences attached to the results of the tests.”44 Further, there is no precedent for
allowing states to meet Title I-A assessment requirements through use of different
assessments in different LEAs — except for the two states which may lack authority
to establish statewide assessments, no states have been allowed to meet the 1994
standard and assessment requirements through use of locally-varying assessments.
Articulation between the tests used in different grades, and coherence of the
overall assessment system, are also important concerns. If, for example, statewide
tests are used in some grades but locally varying tests in other grades, or if CRTs are
used in some grades and modified NRTs in others, this would likely create significant
articulation difficulties, with variations from grade to grade in the proportion of
pupils meeting state standards which result solely from the assessment instrument
used, separate from any underlying differences in achievement levels.
Criteria established in the regulations published by ED for mixed state
assessment systems are relatively demanding. Any NRTs used must be augmented
to “measure accurately the depth and breadth of the State’s academic content
standards” (34 CFR 200.3(a)(2)(ii)(A)), and have results expressed in terms of the
state’s achievement standards; and any LEA-selected assessments used to meet the
Title I-A requirements must be of “equivalent to one another ... in their content
coverage, difficulty and quality,” have “comparable validity and reliability,” and
produce results which can be aggregated (34 CFR 200.3(c)(2)). If these criteria were
to be strictly interpreted by ED in the assessment review process, it is likely to be
very difficult for mixed state assessment systems to be approved. However,
opponents of proposals to allow states to meet the Title I-A requirements through
mixed assessment systems are concerned that ED’s review process may not be very
strict, and that in some states, systems may be approved which are not well aligned
with state standards or are not consistent among LEAs statewide, at least in certain
grades, with the result that the standards for determining whether schools are meeting
AYP standards would significantly vary among LEAs.
In contrast, proponents of a relatively high degree of state flexibility in meeting
the Title I-A requirements through mixed assessment systems argue that this will
minimize federal influence and intrusion, recognize state primacy in selecting
44 National Research Council, Uncommon Measures: Equivalence and Linkage Among
Educational Tests, 1998, p. 5-4.

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CRS-24
assessment systems which meet their needs, minimize costs, and still meet the
purposes of Title I-A because of the criteria which such systems would have to meet.
Proponents of allowing the use of modified NRTs to meet the requirements, at least
for some grades, argue that the differences between NRTs and CRTs have more to
do with how test results are analyzed and presented than with the test items
themselves. The fact that several states currently use a mix of statewide CRTs in
some grades and NRTs in others, or statewide tests of either type in some grades and
locally varying tests in others, may indicate that such mixed assessment systems meet
important educational needs and goals, as perceived by the states themselves.
How Strict Will Be ED’s Review of State Assessment
Systems, and Will States Meet Requirements on Schedule?
While distinct, this issue is related to the topic discussed immediately above,
since the likelihood that states will meet statutory deadlines will in many cases be
significantly influenced by the degree of flexibility to include a variety of tests (NRTs
and CRTs, locally varying and statewide tests) in state assessment systems. The
greater the allowed degree of flexibility, the easier it will be for states to modify
existing assessment systems to meet the expanded Title I-A requirements. However,
the rigor of ED’s review of state assessment systems is a somewhat more
independent factor — a high or low degree of strictness may accompany either a
broad or narrow range of flexibility in the requirements being enforced.
As indicated by the relevant policy guidance and the published communications
to states, peer reviewers and ED staff appear to have been conducting relatively
rigorous and detailed reviews of the “evidence” submitted by states regarding
whether their assessment systems meet the “1994 requirements” initiated by the
IASA. The features which the Title I-A statute requires state assessment systems to
exhibit are themselves numerous and relatively detailed, and a substantial
implementation of them is likely to involve somewhat exhaustive review. The
assessment reviews have focused especially on issues regarding testing, score
reporting, and inclusion in accountability systems for LEP pupils and those with
disabilities. While there are complex issues and considerations in these areas, they
are not being raised solely, and possibly not even primarily, because of the Title I-A
requirements. For example, while there are general guidelines, applicable under Title
VI of the Civil Rights Act of 1964 to any LEA receiving federal grants, regarding the
use of an appropriate language and/or other accommodations for assessment of LEP
pupils,45 and requirements under the IDEA for alternate assessments where necessary
for pupils with disabilities, it is largely in the context of Title I-A that such
requirements are having an impact because of the scrutiny currently being given to
whether state assessments meet the Title I-A requirements.
45 See U.S. Department of Education, Office for Civil Rights, Testing the Academic
Educational Achievement Of Limited English Proficient Students in The Use of Tests When
Making High-Stakes Decisions for Students: A Resource Guide for Educators and
Policymakers, a draft document dated July 6, 2000. Available on the Internet at
[http://www.ed.gov/legislation/FedRegister/other/2000-4/121500b.html].

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CRS-25
While it may be questioned whether ED should be reviewing state assessment
systems in such detail, this scrutiny may be necessary to enforce Title I-A’s statutory
requirements, and might also be necessary to establish outcome accountability for all
major groups of disadvantaged pupils. If, for example, significant numbers of LEP
pupils or those with disabilities were excluded from state assessments, or were not
provided with appropriate accommodations, then it would be impossible to determine
whether they, along with the pupil population in general, are adequately meeting state
performance goals. Such inclusive assessment, combined with disaggregated score
reporting, becomes increasingly important as focus shifts toward outcome measures
to assure accountability for use of federal aid funds, and Title I-A programs are
increasingly conducted in a schoolwide program format, in which services are not
targeted on the individual pupils with lowest achievement in a participating school.46
While detailed review by ED of state assessment systems may raise concerns
about undue federal influence over this fundamental aspect of state and local public
education systems, there are many statutory limitations on the review process. As
noted earlier, the federal government is prohibited from mandating, directing, or
controlling a state’s, LEA’s, or school’s standards, assessments, or curriculum; states
may not be required to submit their standards to ED; and no state plan may be
disapproved by ED on the basis of specific content or achievement standards or
assessment items or instruments. Nevertheless, the degree of federal influence over
at least the broad parameters of state pupil assessment systems — such as grades and
subject areas tested, inclusion of special needs pupil groups, disaggregated reporting
of results — will increase as the NCLBA provisions are fully implemented.
A recent paper by a former ED official who was largely responsible for the
initial stages of review of state compliance with the “1994 requirements” under
ESEA Title I-A encourages continuation of a “vigorous” approach by ED to
enforcement of these requirements — “being prepared to use a full range of
enforcement strategies — from jawboning to compliance agreements to withholding
administrative or program funds if necessary” even though ED has not had “a strong
record of compliance monitoring in ESEA programs.”47 In contrast, others have
urged ED staff to emphasize flexibility in reviewing state compliance with
assessment and related requirements under the NCLBA — “We would advise those
involved in the rulemaking and guidance process to proceed cautiously, for the very
vagueness of the law ... is actually an asset, as it leaves each state room to experiment
within its own strengths and limitations.”48 It is not yet clear whether, or how, the
46 There are two basic types of Title I-A programs. Schoolwide programs are authorized
when 40% or more of the pupils in a school are from low-income families. In these
programs, Title I-A funds may be used to improve the performance of all pupils in a school,
and there is no requirement to focus services on only the most disadvantaged pupils. The
other major type of Title I-A service model is the targeted assistance school program, under
which services are generally limited to the lowest achieving pupils in the school.
47 Michael Cohen, “Implementing Title I Standards, Assessments And Accountability:
Lessons From The Past, Challenges For The Future,” No Child Left Behind: What Will It
Take?, Thomas B. Fordham Foundation, Feb. 2002. pp. 84, 87.
48 Lisa Graham Keegan, et al., “Adequate Yearly Progress: Results, not Process,” No Child
(continued...)

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CRS-26
nature and rigor of this review process may change with more complete
implementation of the NCLBA.
The rigor of ED’s assessment review process, and the flexibility of the
assessment regulations, will also likely influence the extent to which states meet the
expanded requirements on schedule. A recent General Accounting Office report
identified four additional factors which have influenced the pace of state compliance
with Title I-A assessment requirements: “(1) the efforts of state leaders to make Title
I compliance a priority; (2) coordination between staff of different agencies and
levels of government; (3) obtaining buy-in from local administrators, educators, and
parents; and (4) the availability of state level expertise.”49
Given the experience thus far with the “1994 requirements,” as described above,
it seems likely that a significant number of states may fail to meet the future
assessment deadlines in the NCLBA. ED is prohibited from granting additional
waivers, or negotiating additional compliance agreements, with respect to the 1994
requirements, and the NCLBA requires ED to apply sanctions to states which fail to
meet their modified deadlines for those requirements. However, there are no similar
limits on the possible granting of waivers (under the general ESEA waiver authority
in Title IX, Part D), and no required sanctions (although the sanction of reducing
state administration grants is authorized), for states which fail to meet the new
assessment requirement deadlines in the NCLBA.
What Will Be the Cost of Developing and Implementing the
Required Assessments, and to What Extent Will Federal
Grants Be Available to Pay for Them?
The addition of requirements to conduct annual assessments in at least four
more grades than required previously, and to include standards and assessments at
three grade levels in science, will require most states to significantly increase their
expenditures for standard and test development and administration. As indicated
earlier, it is very difficult, if not impossible, to specify all of these potential costs with
precision. Existing estimates of actual state and/or local expenditures for assessment
programs are incomplete, and they refer only to direct, state-level costs for current
testing programs, not to the expanded assessments required under the NCLBA.
The NCLBA conference report directs the General Accounting Office to
conduct a study of the costs to each state of developing and administering the
assessments required under Title I-A, both overall and for each of fiscal years 2002-
2008; however, no information is yet available from that study. At least two
organizations have attempted during 2001-2002 to estimate costs for states of
meeting assessment requirements similar to those of the NCLBA. In 2001, the
National Association of State Boards of Education (NASBE) estimated that the new
48 (...continued)
Left Behind: What Will It Take?, Thomas B. Fordham Foundation, Feb. 2002, p. 22.
49 Title I, Education Needs to Monitor States’ Scoring of Assessments, GAO-02-393, Apr.
2002, p. 13.

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grade 3-8 assessments (only) would cost states between $2.7 and $7.0 billion in the
aggregate over a seven-year period.50 On an annual basis, if costs were equally
distributed across the seven years, this would represent a range of $386 million to $1
billion per year. In contrast, Accountability Works, a private consulting firm,
recently estimated that the annual cost of meeting all of the new assessment
requirements in the NCLBA would be approximately $312 million for each of 2002-
2003 and 2003-2004, $388 million for each of 2004-2005 and 2005-2006, and $328
million for each of 2006-2007 and 2007-2008.51
Each of these estimates is based on a number of assumptions which may or may
not prove to be valid in practice, and the NASBE study was based on portions of the
original Bush Administration proposal, not the final version of the NCLBA. For
example, the NASBE study considers only the requirement for annual standards-
based assessments in mathematics and reading in each of grades 3-8, not the science
assessment requirement; is based on the original proposal that grade 3-8 assessments
must be implemented in 2004-2005, rather than 2005-2006; does not seem to
incorporate an assumption that development costs will decline at any point of the life
cycle of assessments; and incorporates an assumption that test development costs will
rise continuously with the number of pupils in a state, with no adjustment for
economies of scale. The Accountability Works study assumes that all states already
meet the assessment requirements under the 1994 IASA (whereas only 21 do so
currently); incorporates assumed levels of annual test development and
administration costs which appear to be based on data from only two states; excludes
costs for SEA staff and overhead; and incorporates an assumed amount for annual
test administration costs ($10 per pupil) which would not be consistent with use of
essay or other extended response (and relatively expensive to score) questions.
Further, neither of these studies accounts for variation among the states in the extent
to which they already administer standards-based assessments in reading and
mathematics in each of grades 3-8 plus science assessments at three grade levels; and
the basis for some of the assumptions in each of the studies is unclear.
The NCLBA authorizes $400 million for FY2002, and “such sums as may be
necessary” for a number of subsequent years, for state assessment development and
administration grants. The administration, although not the development, of the
grade 3-8 assessments may be delayed by 1 year for each year that the minimum
amounts (e.g., $390 million for FY2004) are not appropriated (the minimum amount
has been appropriated for each of FY2002-2004). The available information on
current levels of direct, state-level expenditures for testing programs indicate that the
“trigger” appropriation levels for state assessment grants are, in the aggregate,
somewhat lower than these estimates.52 The “trigger” amounts are also somewhat
above the Accountability Works estimate of future costs, approximately the same as
the minimum NASBE estimate, and well below the upper NASBE estimate.
50 See [http://www.nasbe.org/Archives/cost.html].
5 1 S e e [ h t t p : / / w w w . a c c o u n t a b i l i t y w o r k s . o r g / p u b l i c a t i o n s /
no_child_left_behind_test_costs.pdf].
52 The $370 million “trigger” amount (and actual appropriation) for FY2002 is 88% of the
estimated aggregate expenditure level for FY2001 (discussed on p. 3 of this report) of
$422.8 million.

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It is clear that the costs of meeting the expanded assessment requirements will
vary widely from state to state, not only because of differences in state size, but also
particularly because of substantial differences in the extent to which state-mandated
tests in reading and mathematics are already administered to all pupils in grades 3-8,
or tests in science are administered to pupils in selected grade ranges, and whether
the existing tests meet the Title I-A technical requirements of alignment with state
standards, inclusion of all pupil groups, etc. As of the 2001-2002 school year, 15
states administered tests in reading and mathematics in each of grades 3-8, and 24
states administered tests in at least three grade levels in science, but it is unclear how
many of these tests are adequately aligned with state content and achievement
standards.53
With respect to the distribution among the states of funds for test development
and administration, the NCLBA provides for allocation of a substantial share (43%
for FY2002) of these funds in equal amounts to each state, with the remainder
allocated in proportion to children and youth aged 5-17 years. The allocation formula
does not recognize the substantial variation in the extent to which states currently
administer the required assessments, and therefore face varying increases in
assessment program costs. The allocation of funds by formula to all states, regardless
of the current status of their state assessment policies and programs, might recognize
that all states face ongoing costs, and might possibly reward states which have
already adopted relatively extensive assessment programs. At the same time, the
formula does not target funds on the states with the greatest needs.
What Might Be the Impact of the Requirement for Annual
Assessment of English Language Proficiency of LEP Pupils?
As noted earlier, the NCLBA requires states to provide that their LEAs will
annually assess the English language proficiency of their LEP pupils, beginning in
the 2002-2003 school year. This is separate from the requirements regarding
treatment of LEP pupils in states’ general assessment systems — i.e., the requirement
that LEP pupils be included in such assessments, in which they are to be assessed in
a valid and reliable manner and provided with “reasonable” accommodations, in the
language and form most likely to yield accurate and reliable information on what they
know and can do in academic content areas (in subjects other than English itself),
with pupils who have attended schools in the United States (excluding Puerto Rico)
for 3 or more consecutive school years to be assessed in English.
In contrast to such requirements regarding treatment of LEP pupils in states’
general assessment systems, the separate requirement for annual assessments of
English language proficiency lacks specificity. There are no statutory details
regarding technical characteristics of the tests — except that the assessment must
consider the pupils’ oral, reading, and writing skills — and (thus far) no policy
guidance from ED. It is also somewhat ambiguous regarding whether states or LEAs
are ultimately or primarily responsible for implementing this requirement.
53 Education Commission of the States, No State Left Behind: The Challenges and
Opportunities of ESEA 2001. Available at [http://www.ecs.org].

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Depending on possible future regulations or policy guidance from ED, this new
requirement may lead to relatively little change in current activities in LEAs.
Although comprehensive and detailed surveys of such assessment practices are not
currently available, there is substantial evidence that LEAs in general already assess
the English language proficiency of LEP pupils for purposes of placement in
instructional programs, determination of needed accommodations in general
assessment programs, evaluation of programs targeted on LEP pupils, and movement
of pupils from special programs to mainstream instruction. While a variety of
assessment methods are used, including teacher observation and home language
surveys, recent surveys indicate that a large majority of LEAs administer formal
English language proficiency tests to their LEP (or potentially LEP) pupils.54 Policy
guidance from ED’s Office for Civil Rights indicates that such assessments should
be undertaken especially, but not only, for purposes of assigning pupils to
instructional programs targeted at LEP pupils, determining the timing of transition
to regular or mainstream instruction for such pupils, and evaluating the effectiveness
of special programs for LEP pupils; although this guidance is unspecific regarding
the type of assessment LEAs should use.55
In addition, LEAs participating in the new English Language Acquisition
program authorized under ESEA Title III, Part A, must report annually the number
and percentage of participating pupils who attain English proficiency, as determined
by a “valid and reliable assessment of English proficiency” (Section 3121(a)(3)). If
ED’s future policy guidance is consistent with the statute’s lack of specificity
regarding the new Title I-A requirement, there may be little required change in LEA
activities as a result of the requirement.
What Might Be the Impact of Requiring State Participation in
NAEP?
Possible Influence on State Standards and Assessments Arising
from (Marginally) Increased Stakes. Two key characteristics of the NAEP
program since its inception have been: (1) the content frameworks, upon which test
items are based, have been independent of the content standards adopted by any state
or national organization; and (2) the “stakes” associated with performance on the
tests have been extremely low. The NCLBA’s requirement for states to participate
in NAEP in order to retain eligibility for ESEA Title I-A grants, with the implicit
purpose of using the results to “confirm” performance trends on state-selected
assessments, has potential implications for both of these characteristics of NAEP.
Previously, the only “stakes” associated with state participation in NAEP have
been the symbolic ones arising from public dissemination of NAEP results for states
that chose to participate and which allowed their assessment results to be published.
Public attention to these results, among persons other than selected policymakers,
54 See National Research Council, Improving Schooling for Language-Minority Children:
A Research Agenda, 1997, pp. 115-116.
55 See [http://www.ed.gov/about/offices/list/ocr/docs/laumemos.html].

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researchers, and policy analysts, seems to have been limited. The NAEP scores have
had no impact on state finances or eligibility for federal programs or services.
While state involvement with NAEP will change significantly under the
NCLBA, the stakes for states will remain relatively low. State results will be
published as an implicit “confirmation” of test score trends on state assessments, but
these NAEP scores will still have no direct impact on state eligibility for federal
assistance. Provisions of the House- and Senate-passed versions of the NCLBA for
state bonuses and sanctions based in part on NAEP score trends were eliminated
from the conference version. Under the NCLBA as enacted, ED is required to
establish a peer review process to evaluate whether states have met their statewide
AYP goals; states which fail to meet them are to be listed in an annual report to
Congress, and technical assistance is to be provided to states that fail to meet their
goals for 2 consecutive years. State NAEP scores will likely be considered in this
review process. However, there is no provision for state bonuses or sanctions under
this procedure, only publicity and technical assistance. This increases the “stakes”
associated with state NAEP performance, but only to a very modest degree.
Nevertheless, even a small increase in the stakes associated with state
performance on NAEP tests attracts attention to the possibility that NAEP
frameworks and test items might influence state standards and assessments. To the
extent that the required participation in NAEP increases attention to state
performance on these tests, there might be a basis for concern that states would have
an incentive to modify their curriculum content standards to more closely resemble
the NAEP test frameworks. To counteract this potential problem, the NCLBA
prohibits the use of NAEP assessments by agents of the federal government to
influence state or LEA instructional programs or assessments. However, subtle,
indirect, and/or unintended forms of influence may be impossible to detect or
prohibit. A “White Paper” policy statement released by NAGB on May 18, 2002,
attempts to distinguish between “active attempts ... to persuade others to adopt NAEP
policies, procedures, or content,” which are prohibited, and “influence by good
example,” which (according to this document) is not.
Voluntary Participation by LEAs, Schools, and Pupils. Might a
conflict arise between the requirement for NAEP participation by states participating
in ESEA Title I-A and the provision that participation in NAEP tests is voluntary for
all pupils, schools, and possibly LEAs? While participation by states, LEAs, schools,
and pupils was voluntary under previous federal law and policy, states or LEAs were
not prohibited from requiring participation by LEAs, schools, or pupils under their
own laws or policies. However, as noted earlier (p. 13), there are conflicting
statutory and regulatory provisions regarding participation in NAEP tests by LEAs
and schools which may be selected for NAEP test administration.
Some have expressed concern that the new provisions regarding voluntary
participation in NAEP might lead to two types of difficulties: (a) in a time of likely
increased assessment activity for pupils nationwide, resistance to participation in
NAEP might grow to an extent that it threatens the quality of the national sample of
tested pupils and makes it difficult to maintain trend lines; and (b) more specifically,
states might be stuck between a requirement to participate in NAEP and an inability
to recruit a sufficiently large sample of LEAs, schools, and pupils to participate in

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order to produce valid and reliable assessment results. In the recent past, some states
have attempted to participate in NAEP but found themselves unable to induce
sufficient numbers of LEAs or schools to do so.56
The primary counter to this concern is that the policies regarding voluntary
participation in NAEP have changed only modestly. As far as federal policies are
concerned, participation has already been voluntary at all levels. While states or
LEAs previously could have mandated participation by LEAs, schools, or pupils,
apparently they generally attempted to avoid doing so. Thus, in practice, little may
have changed. There may nevertheless be some cause for concern, with the
expansion of NAEP to states which have not previously chosen to participate.
Can NAEP Results Be Used to “Confirm” State Test Score Trends?
An unstated, but clearly implicit, purpose of the state NAEP participation
requirement is to “confirm” trends in pupil achievement, as measured by state-
selected assessments by comparing them with trends in NAEP results. Some have
questioned whether it is possible or appropriate to use results on one assessment to
“confirm” results on another assessment which may have been developed very
differently, and what form this “confirmation” might take.
State assessments vary widely in terms of several important characteristics —
such as the content and skills which they are designed to assess, their format, and
modes of response — and they are likely to continue to vary widely, especially as the
final assessment regulations allow the use of both CRTs and modified NRTs, as well
as locally varying assessments. As a result, some state assessments will be much
more similar to NAEP in these important respects than others, and there will be
consequent variation in the significance of similarities or differences when
comparing trends in NAEP versus state assessment score trends for pupils.
If, for example, a state test is closely aligned to state curriculum content
standards which are substantially different from the content embodied in NAEP
assessment frameworks, and if instruction is modified to better match the state
standards, then it is possible that scores on the state assessment will rise while those
on NAEP will be flat or even decline. NAEP frameworks are designed with the
intention that they substantially reflect state standards on average; according to a
recent analysis, “States vary in the amount that their assessment domains [i.e., the
content and skills covered by the assessments] overlap with NAEP. For some, there
is almost complete overlap. For others, the overlap is modest.”57 Other major
differences between NAEP and state assessments include: (a) the time of year when
tests are administered; (b) relative placement of cut scores for achievement levels;
56 In 2000, 48 states (all except Alaska and South Dakota) initially stated their intention of
participating in state NAEP, although ultimately only 41 did so. States which intended to
participate, but did not do so, reportedly were unable to recruit sufficient number of LEAs
and schools. See “Test Weary Schools Balk at NAEP,” Education Week, Feb. 16, 2000.
57 Mark D. Rekase, “Using NAEP to Confirm State Test Results: An Analysis of Issues,”
Will No Child Truly Be Left Behind?, published by the Thomas B. Fordham Foundation,
Feb. 2002, p. 14.

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(c) the (often high, but varying) stakes associated with state assessments versus the
low stakes associated with NAEP; and (d) test format and modes of response.
As for the form which a comparison of NAEP and state test scores might take,
two obvious candidates are average raw scores and the percentages of pupils at
different achievement levels (basic, proficient, etc.). While these are key
benchmarks, either alone, or even both, might overlook important changes or
differences in the distribution of pupil scores. For example, the scores of several
pupils might improve but not by enough to raise them above the cut score for the next
highest achievement level. As noted above, the NAGB has published a report,
“Using the National Assessment of Educational Progress to Confirm State Test
Results,” whose authors argue that state NAEP scores can be used as evidence to
confirm the general trends in scores on individual state assessments, although such
confirmation should not be viewed as, or take the form of, a strict statistical
“validation” of state test results. They address the question of whether comparisons
should be based on raw scores or percentages of pupils at various achievement levels
by recommending a new method of comparison which considers changes and
differences in the overall achievement score distribution, not focusing solely on
overall averages or cut scores.58
What Are the Likely Benefits and Costs of the
Expanded Title I-A Assessment Requirements?
This report concludes with a review of major potential benefits and costs of the
expanded pupil assessment requirements of ESEA Title I-A. The primary benefit
from annual administration of a consistent series of standards-based tests would be
the provision of timely information on the performance of pupils, schools, and LEAs,
throughout most of the elementary and middle school grades. While a majority of
pupils have already been taking assessments in many of grades 3-8, these have been
typically a mix of CRTs and NRTs, state-mandated and locally selected tests, with
no provision that most of these are either equivalent statewide or aligned to state
content and achievement standards. Even under the broadest interpretation of ED’s
draft policy guidance, which would allow states to use modified NRTs in addition to
CRTs, and locally varying tests which are deemed to be equivalent, the resulting state
assessment systems would be more coherent, consistent, and well-articulated than the
current systems in most states. The availability of such consistent, annual assessment
results would be of value for both diagnostic and accountability purposes. The
resulting assessment systems would also continuously emphasize the importance of
meeting state standards as embodied by the assessments.
These expanded requirements regarding pupil assessments — and school, LEA,
and state accountability based on performance on the assessments — have been
enacted in the context of a broader strategy, also initiated in the 1994 ESEA
amendments and expanded by the NCLBA, which involves increased state and local
58 See the report for details. Available at [http://www.nagb.org].

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flexibility in the use of federal education assistance funds.59 Under this strategy,
accountability for appropriate use of federal aid funds is to be established more on
the basis of pupil performance outcomes, and less on prescribed procedures or
targeting of resources, than in the past. Such a strategy implicitly relies heavily on
high quality, current, detailed, and widely disseminated information on pupil
achievement as a basis for outcome accountability policies and procedures. It is
desirable that achievement data be as comparable and current as possible while not
compromising the primacy of states and LEAs in setting K-12 education policy.
According to a recent ED publication, “Testing for Results, Helping Families,
Schools and Communities Understand and Improve Student Achievement,”60 annual
standards-based assessments “will empower parents, citizens, educators,
administrators and policymakers with data ... in annual report cards on school
performance and on statewide progress.” Further, “The tests will give teachers and
principals information about how each child is performing and help them to diagnose
and meet the needs of each student. They will also give policymakers and leaders at
the state and local levels critical information about which schools and school districts
are succeeding and why, so this success may be expanded and any failures
addressed.... A good evaluation system provides invaluable information that can
inform instruction and curriculum, help diagnose achievement problems and inform
decision making in the classroom, the school, the district and the home. Testing is
about providing useful information and it can change the way schools operate.”
At the same time, the expanded Title I-A assessment requirements might lead
to a variety of costs, or unintended consequences, in both financial and other forms.
One such “cost” is expanded federal influence on state and local education policies.
Assuming that most, if not all, states will choose to implement them in order to
maintain Title I-A eligibility,61 then assessment requirements attached to an aid
program focused on disadvantaged pupils would broadly influence policies regarding
standards, assessments, and accountability affecting all pupils in the participating
states. This would represent a substantial increase in federal influence in the
assessment and accountability aspects of K-12 education policy.
In the majority of states which have not administered a consistent series of
mandated, standards-based assessments in each of grades 3-8, this policy may have
resulted primarily from cost or time constraints, or the states may have determined
that annual testing of this sort is not educationally appropriate, or at least that its
benefits are not equal to the relevant costs. These costs may include not only the
direct costs of test development, administration, scoring, reporting, etc., not all of
which may be paid through federal assessment grants, but also an increased risk of
“over-emphasis” on preparation for the tests, especially if the tests do not adequately
assess the full range of knowledge and skills which schools are expected to impart.
59 These provisions are described in CRS Report RL31284, K-12 Education: Highlights of
the No Child Left Behind Act of 2001 (P.L. 107-110), by Wayne Riddle. pp. 11-12.
60 On the Internet, see [http://www.ed.gov/nclb/accountability/ayp/testingforresults.html].
61 Officials in the state of Vermont are reportedly considering terminating their participation
in Title I-A to avoid implementing expanded assessment and accountability requirements.
See “Dean Urges Rejection of Federal Funds,” Burlington Free Press, Apr. 19, 2002.

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The authors of a recent study of the effects of high stakes assessment policies in 18
states have posited an “Uncertainty Principle,” which may be relevant to such
concerns — “The more important that any quantitative social indicator becomes in
social decision-making, the more likely it will be to distort and corrupt the social
process it is intended to monitor.”62 At the least, annual testing of pupils in grades
3-8 would increase the importance of having tests which are well-designed and
closely linked to state content and achievement standards which are truly challenging.
Nevertheless, even within the specific realm of standards and assessments,
federal influence is and would remain limited in several important respects. With the
exception of the limited role of state NAEP tests, the standards and assessments
would be totally selected by the states. ED would not have any authority to review
the substance of any state standards, and no state plan may be disapproved by ED on
the basis of specific content or achievement standards or test items or instruments.
Ultimately, whether increased federal influence in certain respects, combined
with less federal control over certain other aspects of state and local use of federal aid
funds, is a “balanced tradeoff” is a subjective political judgment. The key analytical
point is that the proposed increase in federal influence is constrained, and is balanced
by a decrease of federal influence in certain other respects.
62 Audrey L. Amrein, and David C. Berliner, High Stakes Testing, Uncertainty, and Student
Learning. Published on the Internet at the Education Policy Analysis Archives, vol. 10, no.
18, at [http://epaa.asu.edu/epaa/v10n18/].

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