The No Child Left Behind Act (NCLB) of 2001 is failing both in theory and execution. NCLB has been called "the most sweeping reform of the Elementary and Secondary Education Act since it was enacted in 1965" and was intended to "redefine the federal role in K-12 education so it can be used to improve the academic achievement of all American students." The stated purpose of NCLB is to "ensure that all children have a fair, equal and significant opportunity to obtain a high-quality education." Instead, NCLB is leading to increasing lawsuits between the states and the federal government, threatened school closures, and the potential collapse of entire city public school systems. This Article takes a new approach to examining the failure of NCLB. Much of the criticism of NCLB focuses on the Act's substantive requirements. NCLB attempts to achieve its goals by requiring states to adopt minimum proficiency levels for students in reading, math, and science. The Act then requires states to develop tests to assess student proficiency according to these standards. The Act also directs states to adopt teacher preparation and training methods, student curriculum, and student instructional materials designed to meet the academic standards set by the state. The Act professes to provide "greater decisionmaking authority and flexibility to schools and teachers in exchange for greater responsibility for student performance." Critics charge that these statutory provisions have many negative consequences, including an overreliance on standardized testing, a strain on state educational resources, and the further isolation of minority students and students with disabilities. One aspect of NCLB that has been virtually ignored by its proponents and critics is the day-to-day administration of the Act. NCLB is administered by the Department of Education (DOE), and much of its actual impact on schools and students will be determined based on the regulations enacted by that agency. Congress has directed the DOE to use negotiated rulemaking as the procedure for adopting all regulations to implement the Act. This negotiated rulemaking procedure used by the DOE will prominently figure into the implementation of NCLB.
The Importance of Negotiated Rulemaking to the No Child Left Behind Act,
85 Neb. L. Rev.
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