For example, the department plans to give certain states more freedom in how they test hundreds of thousands of children with milder disabilities, Bush administration officials told The Associated Press on Tuesday. Only states that can prove progress or a strong commitment to improve will be seriously considered for that flexibility, the officials said.
The idea is to get something in return for offering such flexibility, said one official familiar with the changes, such as increased learning and "narrowing the achievement gap." Shrinking the test-score gap between white and minority students is a central goal of the 2001 law, which aims to get all children to grade level in reading and math by 2014.
The officials spoke on the condition of anonymity because the policies had not been formally announced. Education Secretary Margaret Spellings has invited top school officers from the states to Mount Vernon, Virginia, on Thursday to unveil the enforcement approach and the special education policy. Education Department leaders declined comment until then.
The new enforcement approach is the first significant change under Spellings, who helped write the law as Bush's domestic policy chief in the White House before becoming secretary in January.
Spellings has determined that the Education Department hasn't focused enough on the big picture -- whether students are learning -- when it reviews and approves state education plans. States must get approval if they want changes in how they hold schools accountable.
As examples, the department now plans closer review of the states' progress in graduating students, showing gains in early reading and providing report cards to the public.
Political and legal questions
"If they're going to judge states' efforts on meeting the intent of No Child Left Behind, then I think it's going to be a great move and something everyone will be in support of," said Scott Young, senior policy specialist for the National Conference of State Legislatures. "It would put more focus on results, not on making sure states comply with certain regulations."
The bipartisan conference of state lawmakers has criticized the Bush administration over the law, calling it a coercive act that sets unrealistic goals for some hard-to-reach students. One state, Connecticut, became the first on Tuesday to pledge a federal lawsuit over the law.
Yet the department's plans to give states different treatment based on good behavior raise political and legal questions, said Patricia Sullivan, director of the independent Center on Education Policy. Administration officials said lawyers have cleared the idea.
"Who is going to decide whether you have a different level of commitment than another state?" Sullivan said. "Will it matter whether you're a red or blue state? Will it matter whether you have something pending in your state legislature to send the federal money back?"
On the special education policy, the department already allows schools to test 1 percent of students -- those with significant cognitive disabilities -- at their instructional level rather than their grade level. That has been the only testing exception.
Now the department will also allow flexibility for students who are not severely disabled but who have not been able to reach grade level because of disabilities such as moderate mental retardation or severe emotional disabilities. Schools will be allowed to give alternate tests for an additional 2 percent of kids, aimed at covering these "gap" students.
The tests may be geared toward grade-level content but presented in a different way, or they may be based on a different academic level deemed appropriate for an individual student. The department will be looking for models that ensure progress and align tests to content.
Put together, the change means 3 percent of all children -- that's roughly 30 percent of all children with disabilities -- will be allowed to be tested on standards geared for them.
States have been clamoring for that flexibility. But several advocacy groups for the disabled are angry about the change, saying it weakens the promise to leave no child behind.
"It doesn't make sense to decide there is a group of kids who will never make grade level," said Ricki Sabia, associate director of the National Down Syndrome Society Policy Center. "We hold great exception to that concept."