Political Education An Analysis of the Policy and Politics Behind by alextt

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									Political Education: An Analysis of the Policy and Politics Behind Utah’s Opposition to No Child Left Behind
I. INTRODUCTION How is it that a state that has been George W. Bush’s strongest supporter has become one of his most vocal opponents with regard to his largest domestic policy achievement? In the 2004 presidential election, Utah citizens voted for George W. Bush by a greater margin than in any other state in the nation.1 Yet only a year later, Utah’s legislature voted resoundingly2 to enact a law that is widely seen as a rebuke of President Bush’s No Child Left Behind Act of 20013 (“NCLB”). Since its enactment, Utah officials have loudly and consistently derided NCLB as bad for Utah’s educational system.4 This Note explores the policy and politics that drive this nation’s most expansive federal education legislation. In struggling to comply with NCLB, the State of Utah has revealed many of the political contradictions implicit in the law. This Note uses Utah as a lens through which to examine the underlying political and social policy tensions inherent to NCLB. Part II provides an overview of the social and political history that led to NCLB’s enactment and examines its main provisions. Part III offers a brief description of Utah’s particular educational circumstances and an account of its struggles to implement and comply with the legislation. Part IV analyzes the political and social policy tensions driving Utah’s opposition to NCLB and the implications if it fails to comply.

In 2004 President Bush won 72.7% of Utah’s popular vote. Infoplease, Presidential Election of 2004, Electoral and Popular Vote Summary, http://www.infoplease.com/ipa/A0922901.html (last visited May 3, 2006) [hereinafter Infoplease, 2004 Vote]. During the 2000 presidential election, President Bush won 67% of Utah’s vote, which was a greater percentage than any other state except for Idaho (67%) and Wyoming (68%). Infoplease, Presidential Election of 2000, Electoral and Popular Vote Summary, http://www.infoplease.com/ipa/A0876793.html (last visited May 3, 2006). 2 On April 19, 2005, the Utah House of Representatives voted sixty-six to seven in favor of H.R. 1001, and the Senate voted twenty-five to three in favor of the same. See JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE STATE OF UTAH, 55th Leg., 4th Spec. Sess., at 1383 (2005); STATE OF UTAH SENATE JOURNAL, 55th Leg., 8th Extraordinary Sess., at 1228 (2005). The bill provides that Utah education policy trumps No Child Left Behind where the two conflict. See H.R. 1001, 56th Leg., 1st Spec. Sess. (Utah 2005). 3 Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.). 4 See, e.g., Elisabeth Nardi, Lehi Republican to Take on NCLB Law, SALT LAKE TRIB., Dec. 21, 2005, at D2 (describing legislator’s continued attempts to opt out of NCLB).

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II. NO CHILD LEFT BEHIND: POLITICS, PURPOSE, AND PROVISIONS The story of the No Child Left Behind Act begins in 1965. That year, the federal government became significantly involved with national education policy for the first time, thus treading in waters that historically belonged to the states.5 While the federal government began providing public schools with federal funding in 1965, it was not until NCLB was enacted that this funding became attached to stringent accountability standards.6 These new standards were the result of public perception that the nation’s public schools were failing to adequately prepare children for the global economy, and a consensus that previous incarnations of national education policy had failed to make sufficient progress.7 Despite widespread agreement that U.S. public schools needed to be improved and broad bipartisan approval of NCLB,8 strong support for the law has not been sustained over time as it has been put into practice.9 A. The Political and Social History of NCLB Although education has traditionally been a state concern,10 the federal government first became involved with educational policy in 1965 with the passage of the Elementary and Secondary Education Act11 (“ESEA”). ESEA was originally conceived of as a major part of President Lyndon Johnson’s War on Poverty.12 The primary purpose of the legislation was to help close the
5 See Kenneth K. Wong, Federal Educational Policy as an Anti-Poverty Strategy, 16 NOTRE DAME J.L. ETHICS & PUB. POL’Y 421, 421 (2002) (explaining that 1965 marked beginning of education policy that included “[b]y far the largest federal program in elementary and secondary education”). 6 See Paul T. O’Neill, High Stakes Testing Law and Litigation, 2003 BYU EDUC. & L.J. 623, 625 (2003) (describing NCLB as “instrument[] of systemic accountability”). 7 For an overview of the social history leading to public demand for school accountability, see Martin R. West & Paul E. Peterson, The Politics and Practice of Accountability, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 1, 3–8 (Paul E. Peterson & Martin R. West eds., 2003). 8 The No Child Left Behind Act, H.R. 1, 107th Cong. (2001), was enacted by a vote of 384 to 45 in the House and 91 to 8 in the Senate. See 147 CONG. REC. 7, 9296 (2001); 147 CONG. REC. 10, 820 (2001). 9 See Note, No Child Left Behind and the Political Safeguards of Federalism, 119 HARV. L. REV. 885, 885 (2006) [hereinafter Political Safeguards] (discussing widespread political criticism of NCLB). 10 See, e.g., id. at 886 (describing NCLB as “substantial federal incursion into an area typically monopolized by the states”). 11 Pub. L. No. 89-10, 79 Stat. 27 (1965) (codified as amended in scattered sections of 20 U.S.C.); see also KRISTEN TOSH COWAN, THE NEW TITLE I: THE CHANGING LANDSCAPE OF ACCOUNTABILITY, at xii (Charles J. Edwards ed., 2005) (describing ESEA as federal government’s first major foray into education policy). 12 See Nick Lewin, The No Child Left Behind Act of 2001: The Triumph of School Choice over Racial Desegregation, 12 GEO. J. ON POVERTY L. & POL’Y 95, 101 (2005) (describing ESEA’s enactment under Johnson administration).

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educational achievement gap between disadvantaged and more affluent students,13 and the primary mechanism for doing so was “Title I” funding.14 Title I allocates federal funds to U.S. school districts for use in combatting the poor performance generally seen from students attending high-poverty schools.15 While each state manages its own program for distributing and using Title I dollars, the complex regulatory strings that are attached to the funding ensure that states devote most of the funds toward Title I’s mission of improving impoverished schools.16 ESEA must be reauthorized every few years.17 However, the first several reauthorizations did not reform ESEA in any significant way, despite growing public concern about the performance of the nation’s schools.18 During the 1960s and 1970s, SAT scores began to slip, and the public discovered that, on several key measures, American students were slipping far behind students from other industrial nations.19 This concern culminated in 1983 when a national commission appointed under the Reagan administration issued a report, A Nation at Risk, denouncing the performance of American public schools.20 The report spoke in no uncertain terms: “[T]he educational foundations of our society are presently being eroded by a rising tide of mediocrity that threatens our very future as a Nation and a people.”21 The report warned that “[o]ur once unchallenged preeminence in commerce, industry, science, and
13 Most states fund education with local property taxes, thus creating educational inequities because wealthy suburbs provide a larger tax base than poor communities. See Erwin Chemerinsky, Separate and Unequal: American Public Education Today, 52 AM. U. L. REV. 1461, 1470–72 (2003) (discussing inequalities in educational funding). 14 See COWAN, supra note 11, at xiii (discussing Title I’s function of helping disadvantaged students). 15 Although Title I funds are intended for use in low-income schools, the practical result of Title I’s poverty-based formula is that about ninety percent of the nation’s school districts, and half of its public schools, receive some Title I money. See id. (discussing broad reach of Title I money). 16 See id. (discussing “fiscal ‘strings’ associated with receipt of federal funds”). 17 For example, the current appropriations authorization allocates specific Title I dollar amounts for each year through 2007, at which time the legislation will likely be reauthorized and amended again. See 20 U.S.C. § 6302(a) (2000 & Supp. 2003). 18 See David Nash, Note, Improving No Child Left Behind: Achieving Excellence and Equity in Partnership with the States, 55 RUTGERS L. REV. 239, 245 (2002) (“From its enactment until undergoing major revisions in 1994, Title I' basic structure and funding mechanism s remained relatively stable.”); see also West & Peterson, supra note 7, at 5 (providing description of public concern over quality of public education system during 1960s and 1970s). 19 See West & Peterson, supra note 7, at 3–5 (describing decline in SAT scores between 1976 and 1982, and noting international surveys showing U.S. students’ poor performance during same time period). 20 NAT’L COMM’N ON EXCELLENCE IN EDUC., A NATION AT RISK 5–6 (1983); see also COWAN, supra note 11, at xiv (describing auspicious timing of report’s issuance with respect to public’s concern over education). 21 NAT’L COMM’N ON EXCELLENCE IN EDUC., supra note 20, at 5.

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technological innovation is being overtaken by competitors throughout the world.”22 In order to reverse these trends, the report advocated various reforms to improve school performance.23 The proposals were animated by the foundational idea that the public should hold schools, teachers, and students accountable for meeting high expectations.24 Despite a large public response to the report, and a warm reception to its proposals, the Reagan administration was not inclined to expand the federal role in education policy.25 Therefore, while A Nation at Risk proved influential on the public debate surrounding education, it did not prompt any significant steps toward implementing federal educational reform.26 Nonetheless, the idea of holding schools and students accountable for their performance became increasingly popular in the 1980s and 1990s.27 Politicians began routinely giving lip service to school accountability in order to bolster their platforms.28 The issue was particularly popular because it was bipartisan: politicians could “balance their liberal, pro-spending proposals with a more conservative insistence that stringent requirements accompany the new money, thus ensuring the support of business leaders concerned about the quality of the work force.”29 In 1988, when ESEA came up for reauthorization, Congress took the opportunity to write in a limited accountability measure.30 Under the 1988 Hawkins-Stafford School Improvement Amendments,31 states were asked to produce standards for children in Title I schools and create plans for remediation when children failed to meet those standards.32 While the 1988 reauthorization introduced an accountability mechanism into Title I for the first

Id. For instance, the report proposed a more rigorous curriculum, better teacher training and compensation, a longer school year, and higher parental expectations. See id. at 24–33; see also West & Peterson, supra note 7, at 6 (discussing report’s proposals). 24 See NAT’L COMM’N ON EXCELLENCE IN EDUC., supra note 20, at 5–6 (lamenting that “society and its educational institutions seem to have lost sight of the basic purposes of schooling, and of the high expectations and disciplined effort needed to attain them”). 25 See COWAN, supra note 11, at xiv (describing President Reagan’s “lack of enthusiasm for a federal role in education”). 26 See Nash, supra note 18, at 246 (discussing lack of immediate legislative reform despite mounting public criticism of Title I’s failures). 27 See id. (describing buildup of “momentum to move education policy in the direction of standards-based reform” during 1980s and 1990s). 28 See West & Peterson, supra note 7, at 6 (describing “political profit” to be had in touting school accountability reform). 29 Id. 30 See COWAN, supra note 11, at xiv (describing 1988 amendments’ “rudimentary accountability system”). 31 Pub. L. No. 100-297, 102 Stat. 130 (current version at 20 U.S.C. § 6311 (2000)) 32 Id. §§ 1020–21, 102 Stat. at 164–67; see also COWAN, supra note 11, at xiv (discussing effect of 1988 amendments).
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time, the standards only applied to Title I schools and it relied on voluntary state cooperation.33 The 1988 accountability measure was fortified during the 1994 reauthorization when Congress passed the Improving America’s Schools Act34 (“IASA”). IASA expanded on the accountability measure by requiring states to show yearly student progress in reading and mathematics through standardized testing.35 Most significantly, IASA required states to hold all students accountable for meeting educational standards, not just Title I children.36 Despite this innovation, IASA did not prove particularly effective because the states were given overly generous deadlines to achieve progress and federal enforcement of the new requirements was perfunctory.37 This failure to make significant educational progress led directly to the No Child Left Behind Act of 2001,38 which made sweeping revisions to Title I during the first reauthorization under the Bush administration.39 President Bush played a major role in securing the legislation’s passage, as education reform had been a key part of his “compassionate conservative” campaign.40 NCLB was passed by a broad bipartisan coalition41 and hailed for enacting “fundamental, unprecedented reforms.”42 President Bush signed the bill into law on January 9th, 2002, commenting that it would put American schools “on
33 See COWAN, supra note 11, at xiv (explaining that standards were set only for Title I children); West & Peterson, supra note 7, at 7 (discussing amendments’ reliance on state cooperation). 34 Pub. L. No. 103-382, §§ 1111–12, 108 Stat. 3518, 3523–32 (1994) (current version at 20 U.S.C. §§ 6301–7941 (2000)). 35 See COWAN, supra note 11, at xiv (describing IASA); Nash, supra note 18, at 247 (providing brief overview of IASA). 36 See Nash, supra note 18, at 247 (describing applicability of accountability requirements to all public school students under IASA). 37 See West & Peterson, supra note 7, at 7 (describing problems with IASA). 38 Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.). 39 See COWAN, supra note 11, at xv (describing changes NCLB made to Title I); Erin Kucerik, The No Child Left Behind Act of 2001: Will It Live Up to Its Promise?, 9 GEO. J. POVERTY ON L. & POL’Y 479, 479 (2002) (describing NCLB as “monumental revision”); Benjamin Michael Superfine, At the Intersection of Law and Psychometrics: Explaining the Validity Clause of No Child Left Behind, 33 J.L. & EDUC. 475, 478 (2004) (discussing major implications of NCLB’s revision of Title I under reauthorization). 40 For a discussion of President Bush’s role in facilitating the passage of NCLB, see Andrew Rudalevige, No Child Left Behind: Forging a Congressional Compromise, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 23, 34–36 (Paul E. Peterson & Martin R. West eds., 2003) (explaining how President Bush invited several congresspersons to Texas to advocate for passage of legislation). 41 The bill passed in the Senate, 91 to 8, and in the House, 384 to 45. See 147 CONG. REC. 7, 9296 (2001); 147 CONG. REC. 10, 820 (2001). 42 REP. GEORGE MILLER, “THE LEAVE NO CHILD BEHIND ACT,” H.R. 1: QUALITY, RESOURCES AND ACCOUNTABILITY FOR OUR SCHOOLS (2002), available at http://edworkforce.house.gov/democrats/hr1report220.html.

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a new path of reform, and a new path of results.”43 At least in these early days, hopes were high and the media reception was largely optimistic about the law’s promise.44 Despite the initial optimism, the bloom is decidedly off the rose with respect to NCLB’s popularity. Criticism of the law has mounted as states find it increasingly difficult to comply with NCLB’s requirements.45 Several plaintiffs have sought, unsuccessfully, to challenge the law’s constitutionality.46 In 2005 a significant number of state legislatures considered bills that were critical of NCLB.47 The National Education Association, teacher’s unions, and many other commentators have publicly criticized the law for failing to take into account the views of teachers and school administrators.48 When President Bush replaced Secretary of Education Rod Paige with Margaret Spellings in January of 2005, there was hope that Secretary Spellings would execute NCLB with more flexibility and deference to the states; this hope has yet to be realized.49 B. NCLB’s Primary Purpose and Provisions The No Child Left Behind Act of 200150 is a complex set of provisions that spans hundreds of pages51 but has one defining principle: increasing public
Elisabeth Bumiller, Focusing on Home Front, Bush Signs Education Bill, N.Y. TIMES, Jan. 9, 2002, at A16. 44 See, e.g., Jonathan Alter, Give the Pols a Gold Star, NEWSWEEK, Jan. 21, 2002, at 45 (describing NCLB as bipartisan victory); Robert H. Koff & James Harvey, Bring the Dropouts in from the Cold, ST. LOUIS POST-DISPATCH, Feb. 19, 2002, at B17 (discussing NCLB’s potential to improve performance of children from poorest families); Bruce Thompson, Testing Gives Districts a Tool to Measure Progress, MILWAUKEE J. SENTINEL, Jan. 13, 2002, at 3J (discussing benefits of testing under NCLB). 45 See generally COWAN, supra note 11, at ix (discussing perceptions of difficulty with successful implementation of NCLB). 46 See, e.g., Kegerreis v. United States, No. 03-2232-KHV, 2003 U.S. Dist. LEXIS 18012, at *3–4 (D. Kan. Oct. 9, 2003) (dismissing suit for failure to state cause of action where plaintiff alleged that NCLB was unconstitutional because it punishes only teachers when students fail to perform); Sch. Dist. of the City of Pontiac v. Spellings, No. 05-CV-71535-DT, 2005 U.S. Dist. LEXIS 29253, at *13 (E.D. Mich. Nov. 23, 2005) (dismissing case for failure to state cause of action where plaintiff school districts challenged NCLB as imposing unfunded mandates). 47 For a comprehensive list of state legislative activity regarding NCLB, see Nat’l Educ. Ass’n, Growing Chorus of Voices Calling for Changes in NCLB, available at http://www.nea.org/esea/chorus1.html (last visited May 3, 2006) (expressing NEA’s concern with NCLB and its implementation, and compiling summaries of concerns raised by public and policy makers). 48 See id. (providing compilation of organizations that oppose NCLB). 49 See Carl Hulse, G.O.P Irate over Delay on Rice Vote, N.Y. TIMES, Jan. 21, 2005, at A11 (reporting Secretary Spellings’s confirmation as proceeding without opposition); see also COWAN, supra note 11, at ix (discussing rigid enforcement of NCLB under Secretaries Rod Paige and Margaret Spellings). 50 Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.).
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school accountability for the academic performance of its students.52 NCLB’s statement of purpose provides that the law is intended to “ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.”53 To implement this goal, NCLB operates under a cooperative federalism model whereby states develop and manage their own accountability programs, approved by the Department of Education, in return for Title I funding.54 Each state must develop its own set of standards for student proficiency in various subjects at each grade level.55 While states have a measure of control over standard setting, they must meet federally mandated minimum standards.56 Then, states must administer annual tests in grades three through eight,57 and at least once in high school,58 to determine whether students are meeting the proficiency standards.59 Public schools that do not meet the state’s standards are deemed “in need of improvement.”60 School districts are required to give students in these failing schools the option to transfer to another school in the district, and the district must pay for the student’s transportation to the new school with Title I funds.61 Moreover, failing schools must show “adequate yearly progress” toward proficiency as measured by test scores.62

51 See Rudalevige, supra note 40, at 25 (putting NCLB’s page count at 681); see also Bumiller, supra note 43 (quoting President Bush as joking “I wish you could have seen this piece of legislation . . . . It’s really tall.”). 52 See Kucerik supra note 39, at 480 (describing NCLB’s greatest potential impact on schools as that of stronger accountability). 53 20 U.S.C. § 6301 (2000 & Supp. 2003); see also id. § 6301(3) (including in purposes of Act “closing the achievement gap between high and low performing children” with focus on minority students). 54 See generally id. §§ 6303, 6311 (mandating process and requirements whereby states develop federally approved plans in return for Title I funds); see also Rudalevige, supra note 40, at 25–27 (discussing, generally, state and federal mechanics behind NCLB). 55 See 20 U.S.C. § 6311(b) (requiring states to demonstrate that their plans include challenging academic standards that measure proficiency in reading and math). 56 Id. 57 See id. § 6311(b)(3)(C)(vii) (requiring mandatory annual testing in reading and math). 58 See id. § 6311(b)(3)(C)(v)(I) (requiring testing at least once in grades six through nine and once in grades ten through twelve). 59 Initially, the testing is limited to measuring math and reading skills. Id. § 6311(b)(1)(C). After the 2007–2008 school year, proficiency in science is tested as well. See id. § 6311(b)(3)(C)(v)(II). 60 Id. § 6316(b)(1)(A); see also id. (requiring states to identify schools as “in need of improvement” if they fail to make progress for two consecutive years). 61 See id. § 6316(b)(1)(E) (mandating school-transfer requirement); id. § 6316(b)(9)–(10) (requiring transportation and designating how it is to be funded). 62 See id. § 6311(b)(2)(B)–(C) (requiring “adequate yearly progress” as defined by valid and reliable measurement).

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When a school fails to make adequate yearly progress, there is a range of penalties.63 After three years without progress, students are provided with the option to use “supplemental educational services,” which are tutoring programs (often provided by private groups)64 paid for with federal funds.65 After four years of failing to show progress, a school might see its staff or curriculum replaced.66 And after five years without progress, a school can be “restructured,” that is, it can be removed from the district’s control and converted into a charter school, given over to private owners, or closed.67 The addition of these specific consequences for failure to perform is NCLB’s most well-known feature. But the law also adds other innovations to Title I.68 First, it sets minimum qualifications for teachers in all public schools, not just schools receiving Title I funds.69 By the 2005–2006 school year, teachers of core subjects must meet standards for being “highly qualified” and “competent” in the subjects they teach.70 Second, NCLB mandates that school performance be publicly reported each year in state- and district-specific report cards.71 While these report cards have no substantive effect on the schools, the expectation is that the possibility of public shaming will encourage greater performance. Last, NCLB requires test results to be reported not just in the aggregate, but also individually for high-risk groups.72 This provision is intended to uncover potential pockets of poor performance that might otherwise be masked by high average scores.73 In return for complying with the testing and reporting requirements, as well as improving their schools, the states are rewarded with increased
63 See id. §§ 6316(b), 6842(b). For a general discussion of penalties available under NCLB, see COWAN, supra note 11, at 44–45, 65–67, 76–83, 96–101. 64 Supplemental services have been controversial because faith-based groups are not categorically excluded as providers. See William Dolan, No Child Left Behind’s Faith-Based Initiative Provision and the Establishment Clause, 33 J. L. & EDUC. 1, 3–4 (2004) (discussing faith-based organizations’ ability to apply to conduct mentoring, literacy, and physical education programs under NCLB). 65 See 20 U.S.C. § 6316(b)(5)(B); Dolan, supra note 64, at 3 (discussing possibility of parents accessing federal funds for supplemental education services). 66 See 20 U.S.C. § 6842(b)(4). 67 See id. § 6316(b)(8). 68 For an overview of the most significant substantive changes that NCLB wrought on Title I, see COWAN, supra note 11, at xii–xiii. 69 See id. 70 See 20 U.S.C. § 6319(a) (requiring all new teachers hired after enactment to be highly qualified, and requiring all veteran teachers to reach competency by 2005–2006 school year). For some teachers, this requirement might mean returning to college at their own expense for additional coursework. See Sheena McFarland, Special Ed. Faces Tighter Rules: The NCLC Policy Means Many Teachers Must Head Back to College, SALT LAKE TRIB., Dec. 7, 2005, at D1 (reporting that some special education teachers must obtain additional college credits under NCLB). 71 See 20 U.S.C. § 6311(h) (prescribing requirements for state report cards). 72 Id. § 6311(b)(3)(C)(xiii) (requiring that results be capable of disaggregation by gender, race, income, migrant status, and disability). 73 See Rudalevige, supra note 40, at 26 (explaining purpose of disaggregation provision).

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flexibility under NCLB.74 First, the legislation provides states with much broader authority to transfer funds among their educational programs.75 Second, NCLB permits a limited number of states to apply for authority to consolidate funds from various educational programs.76 Although NCLB’s increased flexibility has been heralded by its drafters as a major innovation, it is likely that most states are simply interested in maintaining their federal funding.77 III. HISTORY OF UTAH’S STRUGGLES WITH NCLB Education presents a unique challenge in Utah because the state has more children, as a percentage of its total population, than any other state in the nation.78 Utah has the nation’s highest birthrate, and as a result, the highest child-to-adult ratio.79 The sheer quantity of students that Utah schools enroll makes education a formidable task. As a direct product of this demographic situation, Utah also has the nation’s lowest per-pupil spending.80 Several states spend more than twice what Utah spends, per student, on education.81 Not

74 A prominent theme invoked by proponents of NCLB is its flexibility. See 20 U.S.C. § 6301(7) (describing “greater decisionmaking authority and flexibility to schools and teachers” as primary purpose of NCLB); No Child Left Behind: Improving Academic Achievement through Flexibility and Accountability for Schools: Field Hearing Before the H. Comm. on Education and the Workforce, 108th Cong. 2 (2004) (statement of John A. Boehner, Chairman) (arguing that NCLB was designed to “empower states and local districts with unprecedented levels of flexibility to make decisions”). 75 See 20 U.S.C. § 7305b (permitting states to transfer up to fifty percent of funds from one program to another); see also COWAN, supra note 11, at 247–52 (discussing operation of transferability provision). 76 See 20 U.S.C. § 7315(a); see also COWAN, supra note 11, at 252–56 (providing overview of State Flexibility Authority provision). 77 Few states have applied for consolidation authority, which is one of the major mechanisms through which NCLB provides states with fiscal flexibility. See COWAN, supra note 11, at 252 (stating that, as of February 2005, only Florida applied for and received State Flexibility Authority). 78 See Ronnie Lynn, Numbers Crunch; Watch Out, Utah: 100,000 More Students Are Coming; Schools Face Onslaught, SALT LAKE TRIB., Jan. 12, 2003, at A1 (describing Utah’s child population as “proportionally the largest in the country”). 79 See, e.g., Joyce A. Martin et al., Births: Final Data for 2003, 54 NAT’L VITAL STATISTICS REP. 1, 45 (2005) (showing Utah with nation’s highest birthrate at 21.2 live births per 1000 residents). 80 See EDUC. COMM’N OF THE STATES, STATE NOTES: FINANCE, CHANGES IN PER-PUPIL EDUCATION SPENDING (1981–2001), at 4 (2004), available at http://www.ecs.org/clearinghouse/54/16/5416.pdf (showing Utah’s per-pupil expenditures for 2001–2002 at $4769, $2755 less than national average); Lynn, supra note 78 (describing Utah’s low per-pupil spending in relation to its high youth population). 81 See EDUC. COMM’N OF THE STATES, supra note 80, at 1–4 (showing Connecticut, Delaware, Massachusetts, New Jersey, New York, Rhode Island, and Vermont as spending at least twice Utah’s amount per pupil).

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surprisingly, Utah also has the nation’s most crowded classrooms.82 Adding to these demands, Utah has significant and growing Hispanic and Latino populations that do not speak English as a first language.83 Taken together, these challenges create a struggle as Utah attempts to stretch its education dollars to run an adequate public school system. Against this cultural backdrop, Utah’s Office of Education filed its plan for complying with NCLB on the last day of the deadline.84 Four months later, after prolonged negotiation, the U.S. Department of Education approved the plan.85 However, when Utah received its first report card in 2003, the news was dismal.86 Almost a third of Utah’s public schools failed to meet the standards for reading and math, and fully half of the schools in Utah’s largest school district failed.87 In addition, many of Utah’s schools performed poorly because of low achievement among low-income students, those with disabilities, and students that do not speak fluent English.88 Embarrassed and daunted by the task of improving on such disheartening scores, Utah Representative Margaret Dayton introduced legislation to completely opt out of NCLB.89 However, this stance soon softened when legislators realized that a total opt out would cost the state tens of millions of dollars in federal funding.90 Later, Representative Dayton presented a new version of the bill.91 This time, the bill stopped short of fully opting out of

82 See Lynn, supra note 78 (reporting on problem of “bulging classrooms”); see also Eugene M. Lewit & Linda Schuurmann Baker, Class Size, 7 FUTURE OF CHILD. 112, 117 (1997) (using graphs showing that Utah has highest average and actual classroom sizes). 83 See Heather May, House Tables Proposal Mandating English Classes for Nonspeakers, SALT LAKE TRIB., Jan. 17, 2001, at A4 (describing death of bill designed to “meet the needs of an exploding population of non-English speaking students”). 84 See Ronnie Lynn, Utah Files Its ‘No Child Left Behind’ Schools Plan with Feds, SALT LAKE TRIB., Feb. 4, 2003, at B2 (reporting plan was filed on January 31, 2003). 85 See Ronnie Lynn, Feds Approve Utah’s Plan on School Reform, SALT LAKE TRIB., June 12, 2003, at A1 (reporting that after “arm-wrestling with state officials, the U.S. Department of Education has backed off and approved Utah’s plan for improving academic achievement”). 86 See A Third of Schools Fall Short; No Child Left Behind Pass Rates Difficult for SpecialNeeds Students, SALT LAKE TRIB., Dec. 16, 2003, at A1 (reporting that Utah’s first report card “tarnished the state’s historically strong track record of school performance”). 87 See id. (reporting that “nearly a third of Utah’s 800-plus public schools failed[,]” as did half of Jordan District’s schools). 88 See id. (reporting that most of 244 failing schools fell short because of disabled and disadvantaged students). 89 See H.R. 135, 54th Leg., Gen. Sess. (Utah 2003); see also Political Safeguards, supra note 9, at 888 (describing Representative Dayton’s initial proposal). 90 See Political Safeguards, supra note 9, at 897–98 (describing how bill died in face of huge loss of Title I funds). 91 See H.R. 1001, 56th Leg., 1st Spec. Sess. (Utah 2005); see also Political Safeguards, supra note 9, at 898 (describing Representative Dayton’s introduction of “watered-down version of the bill”).

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NCLB and instead mandated that where there is a conflict between federal and state education policy, Utah policy prevails.92 In 2005 the Utah Legislature stalled consideration of an updated version of the bill when Governor Jon Huntsman, Jr. asked for time to see if he could negotiate with the Department of Education in order to gain some leeway for Utah.93 While Governor Huntsman was not able to win any significant concessions in negotiation, Secretary Spellings did send a scathing letter to the Utah Legislature through Senator Orrin Hatch.94 The letter accused the bill of being “designed to provoke non-compliance with federal law and needless confrontation,” and warned that seventy-six million dollars in federal funding might be cut if the bill passed.95 Nonetheless, the House dismissed this threat and passed the bill.96 Although this partial rejection of NCLB is now codified in Utah law,97 Secretary Spellings’s warnings about losing federal funding have not yet manifested themselves. IV. THE POLITICAL AND POLICY IMPLICATIONS OF UTAH’S OPPOSITION TO NCLB At its most basic, school accountability is simply the idea that academic achievement should be measured, and that consequences should flow from that measurement such that good performance is incentivized and poor performance is penalized.98 But while almost everyone will agree that high academic achievement is a good thing and should be rewarded, there is a myriad of ideas about how to put accountability into practice.99 For example,
92 See H.R. 1001, 56th Leg., 1st Spec. Sess. (Utah 2005) (requiring school officials to determine whether NCLB “requires the state to spend state or local resources in order to comply” or “causes the state, local education agencies, or schools to change curriculum in order to comply”). 93 See Ronnie Lynn, State Senators Fire Off Missive to Bush on No Child Left Behind, SALT LAKE TRIB., Mar. 9, 2005, at B3 (reporting that measure stalled upon Governor Huntsman’s urging). 94 See George Archibald, Spellings Presses Utah to Accept Education Law, WASH. TIMES, Mar. 18, 2005, at A11 (reporting on Governor Huntsman’s unsuccessful meeting with Secretary Spellings); George Archibald, Spellings Warns Utah in Battle over Federal Act, WASH. TIMES, Apr. 20, 2005, at A01 [hereinafter Archibald, Spellings Warns Utah] (reporting on Secretary Spellings’s letter to Senator Hatch). 95 See Archibald, Spellings Warns Utah, supra note 94. 96 See Sam Dillon, Utah Vote Rejects Parts of Education Law, N.Y. TIMES, Apr. 20, 2005, at A14 (reporting on Utah Legislature’s “stinging rebuke” of NCLB). 97 See UTAH CODE ANN. § 53A-1-904 (Supp. 2005). 98 See Ludger WöBmann, Central Exit Exams and Student Achievement: International Evidence, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 292, 294–96 (Paul E. Peterson & Martin R. West eds., 2003). 99 For a general discussion of accountability models, see Eric A. Hanushek & Margaret E. Raymond, Lessons about the Design of State Accountability Systems, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 127, 129–44 (Paul E. Peterson & Martin R. West eds., 2003).

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an accountability system might operate on a national, state, or local level, or even within an individual school or classroom. Likewise, penalties and rewards might be imposed at the state, district, or school level, and they might affect students, teachers, administrators, parents, or all of the above. There is also debate about how often testing should occur, what subjects the tests should measure, and who should be involved in designing and administering the tests. Last, there is dispute about the appropriate penalties: some advocate for “hard” penalties that result in loss of funding, teacher replacement, school closure, and student failure, while others prefer “soft” penalties, which operate to encourage good performance through normative and social influence. Thus, there are preferred models of accountability to suit almost every political ideology.100 But when one tries to create a system that pleases everyone by mixing features from the various accountability models, the unavoidable result is a system that represents political compromise, with inherent policy tensions and contradictions. This is precisely the danger faced by the NCLB accountability system.101 Utah is arguably the most conservative state in the nation.102 From that perspective, there is much to recommend in NCLB: it relies on free-market principles of competition to improve school performance, it increases parental autonomy by providing for school choice and private supplemental services, and it reins in wasteful spending by linking funding directly to performance.103 At a more basic level, one might expect that a state that voted so overwhelmingly to elect and reelect the President might look favorably on his most significant policy achievement.104 Instead, Utah officials have come out strongly against NCLB, and the legislature has enacted a law described as a “stinging rebuke of President Bush’s signature education law.”105 The immediately obvious explanation for this opposition is that Utah is reacting to the one aspect of NCLB that violates

See id. at 136–47 (comparing efficacy of various school accountability models). For a discussion of the political process that resulted in NCLB, see supra notes 38–43 and accompanying text. 102 See Matt Canham, Provo Ranked Most Conservative in U.S., SALT LAKE TRIB., Aug. 12, 2005, at A1 (reporting that Utah city is most conservative in nation); see also Infoplease, 2004 Vote, supra note 1 (showing that largest percentage of popular vote for 2004 Republican presidential candidate came from Utah). 103 For a discussion of libertarian and conservative philosophy with respect to schooling, see HARRY BRIGHOUSE, SCHOOL CHOICE AND SOCIAL JUSTICE 47–48, 53–57, 59–61, 141–49 (2000). 104 In his February 2005 State of the Union address, President Bush touted NCLB as raising test scores and closing the minority achievement gap. See State of the Union; ‘We Must Pass Reforms That Solve the Financial Problems of Social Security’, N.Y. TIMES, Feb. 3, 2005, at A22 (“‘Under the No Child Left Behind Act, standards are higher, test scores are on the rise and we’re closing the achievement gap for minority students.’” (quoting President Bush)).. 105 See Sam Dillon, Utah Vote Rejects Parts of Education Law, N.Y. TIMES, Apr. 20, 2005, at A14.
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a core precept of conservatism: it encroaches on state autonomy.106 Indeed, most of the official accounts of Utah’s stance cite the criticism that NCLB represents federal overreach into an area that should be controlled locally.107 While these complaints of federal intrusion might be genuine, one cannot help but wonder whether Utahns are looking the federal gift horse in the mouth. State officials may complain loudly and bitterly about federal coercion, but they also stand with hands outstretched, happy to receive federal dollars. In a very real sense, Utah might simply be stuck between a rock and a hard place. Its more liberal factions welcome NCLB’s federal dollars, increased education spending, and attention to minority and low-income students. Its conservative base approves of NCLB’s school choice and strict accountability provisions, but abhors its character as a massive federal program. But above all, Utah is desperate for education funding. This means that the state most likely to oppose NCLB’s federal character on conservative philosophical grounds is also the state that can least afford to opt out. A. Federalism Concerns What does it mean when a state vigorously resists federal control over its education policy, yet refuses to give up federal funding? Is this the worst kind of have-your-cake-and-eat-it-too hypocrisy, or simple pragmatism? According to the Education Secretary, Utah could stand to lose seventy-six million dollars in federal dollars by failing to comply with NCLB.108 While this sounds like an enormous figure, it represents less than a tenth of Utah’s total education budget.109 Arguably, if Utah truly wanted to stand on state autonomy principles, it could devise a budget to make up for the loss of federal funds and simply opt out of NCLB.110 From one perspective, NCLB should provide Utah with little to complain about. After all, increased state flexibility was one of the cornerstones of the
106 For arguments that NCLB violates federalism principles, see Gina Austin, Note, Leaving Federalism Behind: How the No Child Left Behind Act Usurps States’ Rights, 27 T. JEFFERSON L. REV. 337, 352–68 (2005); Coulter M. Bump, Comment, Reviving the Coercion Test: A Proposal to Prevent Federal Conditional Spending That Leaves Children Behind, 76 U. COLO. L. REV. 521, 537–46 (2005); and Political Safeguards, supra note 9, at 906. 107 See, e.g., Nardi, supra note 4 (reporting on Representative David Cox’s complaint that NCLB “takes away the state’s right to govern its school boards”). 108 See Ronnie Lynn, Utah Law on NCLB May Hurt; Ask Texas, SALT LAKE TRIB., May 2, 2005, at B1 (reporting that Secretary Spellings followed through on similar threats to Texas, and surmising that Utah might also be punished). 109 See Nardi, supra note 4 (reporting that federal NCLB funds comprise eight percent of Utah’s education budget). 110 In fact, at the time of this writing, the Utah Legislature is debating how to spend an anticipated one billion dollar budget surplus, and polls show strong support for spending the funds on education. See Holly Mullen, People Say Spend It on Schools, SALT LAKE TRIB., Feb. 12, 2006, at B1.

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legislation.111 Under NCLB, Utah is permitted to develop its own accountability program and set its own standards, subject only to minimal federal requirements.112 Utah is also authorized to manage and administer the program it develops.113 Most significantly, NCLB provides Utah with tens of millions of dollars each year in federal funds, and the only requirement for receiving those funds is compliance with the plan that Utah itself created. Some would argue that this hardly constitutes federal coercion and that, in fact, NCLB does not go far enough in setting rigorous federal standards.114 Still, from a state as consistently conservative as Utah, one would expect resistance to federal governance in an area that has traditionally been subject to local control. But after initial threats of a total opt out, the state tempered its stance and chose to enact legislation that “‘enables Utah to receive the $106 million, but be free of federal requirements to use it for the law’s implementation.’”115 Perhaps it was simply politically unfeasible for Utah to opt out: politicians generally do not enjoy explaining to parents why they turned down millions of dollars for their children’s education. Perhaps Utah legislators feared a federal backlash and did not want to anger a Republican administration they consider their ally. In this respect, Utah would not be alone as many “Republican state legislators have struggled over what to do with a law they dislike championed by a President they like very much.”116 Fears of a federal backlash might be warranted. The Department of Education has granted other states’ requests for waivers and variances, and some suspect that federal denial of Utah’s similar requests is a thinly veiled punishment. A Utah school official surmised that “‘Utah seems to be the whipping boy for being out front in taking issue with No Child Left Behind.’”117 Of course, if the Department of Education is truly punishing Utah for its critical stance on NCLB, it raises grave federalism concerns. But it also raises the question: if Utah is already being punished for merely being critical, even though it complies, then why not just opt out completely and be rid of federal interference? The most likely answer is that Utah simply has no choice. The hard facts of demographics mean that Utah needs to hold on to every education penny it
111 See 20 U.S.C. § 6301 (2000 & Supp. 2003) (stating NCLB’s purpose of “providing greater decisionmaking authority and flexibility to schools and teachers”). 112 See generally id. §§ 6303, 6311 (mandating process whereby states develop federally approved plans in return for Title I funds). 113 See id. 114 For a discussion of NCLB’s limitations, see West & Peterson, supra note 7, at 8–9. 115 See Mike Cronin, Bill Wants Utah to Be Picky on Ed Law, SALT LAKE TRIB., Feb. 10, 2004, at A1 (quoting Utah Representative Margaret Dayton). 116 Political Safeguards, supra note 9, at 899. 117 Shinika A. Sykes, No Child Left Behind: State’s Resistance to the Bush Mandate Appears to Have Created a Backlash, SALT LAKE TRIB., Sept. 30, 2005, at B8 (quoting Ray Timothy, Associate Superintendent of Public Instruction); see also id. (reporting on suspicions of federal backlash).

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can get its hands on. With the highest birthrate in the nation, Utah has the least to spend per student.118 In this, Utah is not alone. The states with the lowest birthrates typically spend the most education dollars per pupil.119 Moreover, birthrate is tightly correlated with a state’s political composition: of the five states with the highest birthrates, all voted Republican in the last election.120 Of the five states with the lowest, all but one voted Democrat.121 These demographics provide a clue as to how a Republican President was able to push for such federally expansive legislation in the first place. The Republican states that are most likely to oppose federal intrusion based on political ideals are the same ones that have the most children and most desperately need federal education funding. In contrast, those with budgets large enough to turn down federal funding are the Democratic strongholds that are least likely to oppose federal encroachment. Considering this demographic scenario, Utah’s lack of a principled stand against NCLB begins to look less like a political cop-out and more like a pragmatic survival tactic. B. High-Stakes Testing Beyond NCLB’s federalism implications, there is much about the legislation to appease a conservative state. NCLB imposes a high-stakes testing regimen whereby free-market principles of competition work to create a perform-or-perish scenario.122 Schools that don’t live up to Utah’s standards must show annual progress, supported by test scores, if they are to continue to receive funding. This type of results-oriented model achieves fiscal efficiency through market mechanics and comports well with conservative economic philosophy.123
118

119 For example, Vermont, with 10.6 births per 1000 residents, spent $9798 per student; Maine, with 10.6 births per 1000 residents, spent $8160 per student; and New Hampshire, with 11.2 births per 1000 residents, spent $7926. See Martin et al., supra note 79, at 45; EDUC. COMM’N OF THE STATES, supra note 80, at 2–4. 120 These states were Utah (21.2 births per 1000 residents), Texas (17 per 1000), Arizona (16.3 per 1000), Idaho (16 per 1000), and Georgia (15.7 per 1000). See Martin et al., supra note 79, at 45; Infoplease, 2004 Vote, supra note 1. 121 These states were Vermont (10.6 births per 1000 residents), Maine (10.6 per 1000), New Hampshire (11.2 per 1000), Rhode Island (12.3 per 1000), and Connecticut (12.3 per 1000). Only West Virginia (11.6 per 1000) voted Republican. See Martin, supra note 79, at 45; Infoplease, 2004 Vote, supra note 1. 122 For a discussion of free-market principles in NCLB, see Rudalevige, supra note 40, at 26–27. 123 See Frederick M. Hess, Refining or Retreating? High-Stakes Accountability in the States, in NO CHILD LEFT BEHIND? THE POLITICS AND PRACTICE OF SCHOOL ACCOUNTABILITY 55, 67 (Paul E. Peterson & Martin R. West eds., 2003) (discussing fact that “implementing coercive

4.

See Martin et al., supra note 79, at 45; EDUC. COMM’N OF THE STATES, supra note 80, at

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So it is curious that Utah’s conservative politicians apparently find NCLB objectionable not just on federalism principles, but because its requirements are simply too difficult to achieve.124 Utah was likely embarrassed by the shoddy results of its first report card under NCLB, but poor early scores are somewhat likely to be expected.125 The typical pattern when any new accountability system is implemented is for scores to begin low and then climb as schools and teachers improve.126 Moreover, implicit to any real accountability system is the prospect that there will be some losers: a system of penalties does not work if no one is ever penalized. A preference for softer, less stringent accountability systems that produce less harsh results is conventionally considered a liberal trait.127 So why shouldn’t Utah champion NCLB’s uncomfortable yet effective testing regime? One theory is that Utah politicians are buckling in response to political pressure from constituents that are placed at risk by NCLB (most particularly school employees). From this perspective, Utah is following a predictable pattern: Many accountability programs begin with at least a rhetorical commitment to the transformative high-stakes ideal. Over time, however, implementation gradually makes clear the costs implied by such change, eroding support for coercive accountability while opposition coalesces. Opponents of transformative accountability hardly ever suggest that they are opposed to the broader notion of accountability, instead tracing their opposition to the specifics of the existing arrangements. Such critics implicitly agree that they will support transformative accountability only if it is stripped of its transformative character.128 Under this view, Utah’s cries of federal foul play may actually be disguising a less savory unwillingness to engage in the hard work that it takes to improve a faltering school system.

accountability in states . . . where Republicans and conservative Democrats hold sway is far easier than in more liberal and predominantly Democratic states”). 124 See Elisabeth Nardi, Lehi Republican to Take on NCLB Law, SALT LAKE TRIB., Dec. 21, 2005, at D2 (quoting Utah Representative David Cox as stating: “No Child Left Behind sounds good, but in my mind it should be called 40 ways to lose your school . . . 40 ways to fail”). 125 Almost a third of Utah’s schools failed to meet proficiency standards in its 2003 report card. See A Third of Schools Fall Short; No Child Left Behind Pass Rates Difficult for SpecialNeeds Students, SALT LAKE TRIB., Dec. 16, 2003, at A1. 126 See Hess, supra note 123, at 55–56 (discussing accountability systems’ “familiar trajectory, with abysmal early student scores improving rapidly even as scattered opposition begin to coalesce”). 127 See id. at 67 (discussing liberal tendency to “support the most visible victims of coercive accountability”). 128 Id. at 58.

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Alternatively, many educators argue that stringent standards are not problematic in their own right. Rather, NCLB’s testing requirements impose a profound negative effect on schools because they force teachers to “teach to the test,” rather than to the needs of their students.129 This argument is persuasive and entirely in line with the educational philosophy commonly espoused by public school proponents. In contrast, Utah legislators appear unwilling to support a conservative philosophy of tough accountability when doing so is politically costly. C. School Choice The NCLB feature that one would expect Utahns to find most attractive is the school choice provision. Under NCLB, parents of children in schools “identified for school improvement” are given the option to send their children to a passing school, free of charge.130 While NCLB’s provision limits parental options to other public schools in the same district, it still significantly increases parental autonomy. In this way, NCLB’s school choice provision fits nicely with longstanding conservative advocacy of parental control over their children’s education.131 Yet NCLB’s school choice provision has not been enough to save the legislation from Utah’s disfavor. There are certainly many political criticisms of the desirability of school choice regimes. The most common objection is that school choice undermines the ideal of equality in public school education and leaves poor and disadvantaged students in the worst schools while more affluent students transfer out.132 But this objection runs aground in the context of a debate about NCLB because the law is intended to have precisely the opposite effect. NCLB is crafted to allow low-income and other high-risk students to transfer to better schools, especially when they would otherwise lack the resources to do so.133 In contrast to a voucher system, which
129 For a critique of mandatory testing requirements, see ALFIE KOHN, THE SCHOOLS OUR CHILDREN DESERVE 73–112 (1999). 130 See 20 U.S.C. § 6316(b)(1)(E) (Supp. 2003) (mandating funded school transfer requirement for failing schools). 131 For discussions of conservative and libertarian philosophy regarding school choice and parental autonomy, see BRIGHOUSE, supra note 103, at 65–111, 141–50; PETER W. COOKSON, JR., SCHOOL CHOICE: THE STRUGGLE FOR THE SOUL OF AMERICAN EDUCATION 17–37 (1994); and KERRY L. MORGAN, REAL CHOICE, REAL FREEDOM IN AMERICAN EDUCATION 41–50 (1997). 132 See BRIGHOUSE, supra note 103, at 112–15 (describing argument that “children should not have significantly better access to education simply because they have wealthier parents, or live in wealthier communities”). 133 But see Lewin, supra note 12, at 105–06 (arguing that NCLB’s choice provisions run up against desegregation orders that prohibit such choice); Dan J. Nichols, Comment, Brown v. Board of Education and the No Child Left Behind Act: Competing Ideologies, 2005 BYU EDUC. & L.J. 151, 176 (arguing that much of NCLB’s philosophy is antagonistic to Brown’s desegregationist ideals).

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potentially drains money and attention from the public schools, NCLB’s school choice provision is intended to reward the best-performing public schools and weed out the worst.134 If NCLB’s school choice provision lacks traction among Utah officials, it may simply be because it holds no meaningful appeal to parents or voters. Utah has very few private schools, and more than ninety-five percent of the state’s children are educated in the public school system.135 This may indicate that some Utah parents are satisfied with their local schools. Moreover, NCLB’s transfer options only allow parents to choose between other schools administered by the same district.136 In a state with a dense school system, transferring your child to a school that may only be a few blocks away likely holds little attraction. V. CONCLUSION It is not surprising that the Utah legislature reacted with opprobrium in response to a federal program that imposes strict new standards in an area traditionally subject to local control. As a deeply conservative state, Utah’s initial threats of a complete opt out from NCLB seemed credible. It was less foreseeable that Utah’s complaints would be directed not only at federalism concerns, but also at the form of NCLB’s accountability requirements. NCLB’s strict accountability measures are based on free-market principles and not only weed out failing schools, but also provide for increased parental autonomy when schools fail to perform. These features should be attractive to a conservative state, yet the Utah legislature has been conspicuously silent. If anything, Utah has been critical of the accountability standards, perhaps as a reaction to poor test results. Yet despite Utah’s displeasure with NCLB, it ultimately backed down from its initial stance of a total opt out. Because the Education Department has been unyielding, Utah’s softened position is more likely the result of political realities than any concessions from the federal government. Utah has more children than any other state in the nation, and less money with which to educate them. In light of this, it would simply be politically unfeasible for Utah legislators to turn away education funding, even when it comes attached to unpleasant federal strings. The No Child Left Behind Act is riddled with political contradictions and, in Utah, it has led to politically unusual outcomes. Whenever adversarial
For a discussion of school voucher systems, see Jeffrey R. Henig & Stephen D. Sugarman, The Nature and Extent of School Choice, in SCHOOL CHOICE AND SOCIAL CONTROVERSY: POLITICS, POLICY, AND LAW 13, 26–29 (Stephen D. Sugarman & Frank R. Kemerer eds., 1999). 135 See Deborah Katz Levi, Note, Tuition Tax Credit Proposals in Utah—Their Constitutionality and Feasibiliy, 2005 UTAH L. REV. 1047, 1062. 136 See 20 U.S.C. § 6316(b)(1)(E) (Supp. 2003).
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organizations come together as joint foes in opposition to a law, its singularity is evident.137 In Utah, NCLB does not have enough conservative features to prevent widespread opposition to the law. Yet it also is not so abhorrent that Utahns are willing to opt out completely, especially when doing so means the loss of millions of federal dollars for underfunded schools. NORA BRUNELLE

See Ronnie Lynn, Strange Bedfellows Back Protest of No Child Left Behind, SALT LAKE TRIB., Feb. 4, 2005, at A6 (reporting that conservative Utah Eagle Forum and liberal Utah Education Association mutually supported legislative opposition to NCLB).

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