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President George W. Bush has around 30 months to cement his most important domestic policy agenda—or not.  The administration’s enforcement of the No Child Left Behind Act during that period will determine in large measure whether that law’s lofty but vital goals will be fulfilled or simply another empty promise to America’s neediest schoolchildren.  In that regard, it is sending decidedly mixed signals.

The latest signal is not reassuring: a “flip” in the order of providing supplemental services to children in failing schools or allowing them to leave for better schools.  The act’s signature promise is that no child will be forced to attend a failing school.  But by administrative fiat, U.S. Secretary of Education Margaret Spellings decided that scores of school districts could delay such transfers for a year, in clear conflict with the law’s intent. 

Under NCLB, schools receiving federal Title I funds that fail to make adequate yearly progress for two years must provide students an opportunity to transfer to better-performing schools within the district.  If the schools fail for another year, they must offer supplemental services, i.e. tutoring. 

Though supplemental services can be helpful, an hour or so of tutoring per week is no substitute for offering children a place in better schools.  The law itself reduces the effectiveness of the tutoring provided.  Funding is capped, so the number of students who can benefit, and the number of sessions allowed, is limited.  Although some effective providers participate, often the services are provided by the same personnel who have failed to educate the children during the school day.  And there is often little coordination between eligible students’ schools and teachers and the after-school tutors who are tasked with catching them up in reading and math.  Finally, only the transfer option exerts systemic effect on failing schools to improve, for they have a strong incentive to keep the students and the funds that accompany them.

For all those reasons, the bipartisan congressional majorities that enacted NCLB mandated transfer options first, then supplemental services if necessary.  By succumbing to school district pressure and granting waivers of the school choice options, Spellings has placed the band-aid before the surgery, thereby denying to many thousands of children the chance to escape failing schools. 

The record of school districts in making transfer options available has been, with a handful of exceptions, abysmal.  Nationally, less than one percent of eligible children have transferred, owing to inadequate and confusing information provided by the districts, blatant disregard of the law by some districts and states, and insufficient seats available in better-performing public schools.  The result is that at least three million children are trapped in chronically failing schools, and they are likely to still be trapped with schools opening now.  These are not schools that narrowly missed achievement targets one time; they are schools that have failed to make adequate progress under state standards for at least six consecutive years.

NCLB itself is partly to blame for that fact.  Although Ms. Spellings’ predecessor Dr. Rod Paige issued regulations decreeing that lack of capacity is no excuse for failing to provide public school transfer options, the law fails to ensure meaningful school choice options.  For example, when (as is the case in many urban school districts) the number of children eligible for transfers vastly exceeds the number of seats available in better-performing public schools within the district, the law falls short of giving these children a right to transfer to a successful school in a neighboring district.  Moreover, although the law confers clear transfer rights upon schoolchildren, it provides no private means to enforce them.  That leaves Secretary Spellings alone with the sole power to make good on the children’s rights.

In that regard, the Administration’s signals in two recent cases in which we have provided legal assistance are more hopeful.

*In March, the Alliance for School Choice and the Coalition on Urban Renewal and Education filed administrative actions against two of the school districts that have been most brazen in their noncompliance with NCLB’s school choice provisions: the Los Angeles and Compton, California school districts.  In Los Angeles, the district has squelched transfer options so effectively that only two of every thousand eligible children have transferred.  In Compton, the number is a whopping zero.

In a May letter to California school officials, Spellings demanded a full investigation and announced she would conduct her own.  In a subsequent letter announcing the supplemental services/transfer options flip, Spellings also served notice that she would use the tools at her disposal to enforce transfer obligations.  In most cases of noncompliance, she declared, “I will place conditions on State grants and consider withholding Federal funds.”  (Since this article was submitted for publication, Spellings’s August 15th deadline has passed, with no further comment from the U.S. Department of Education. -ed.)

*In Birmingham, Alabama, Citizens for Better Schools filed complaints in 2005 and 2006 with Secretary Spellings after the school district denied thousands of eligible students the right to transfer out of failing schools.  While families in Birmingham are still waiting for relief, her staff‘s actions to date have been encouraging.  They have investigated parents’ allegations and are prodding the state of Alabama to vigorously enforce the law.  

The Administration’s response in both cases is encouraging and could go a long way toward signaling to states and districts that they need to move into high gear to make real options available to parents and students.  But the difference between Spellings’s flip of supplemental services and public school options on the one hand and the threatened enforcement actions on the other is that the carrot is tangible and the stick, so far, is rhetorical. 

States and school districts will not take seriously their school choice obligations under NCLB unless and until Secretary Spellings makes an example of one or more of them.  And millions of children will be deprived of their futures until additional options–such as meaningful inter-district transfers, an accelerated expansion of successful charter schools, and other options–are added to the law. 

Over 50 years ago, our nation through its Supreme Court made a sacred commitment to equal educational opportunities for every American child.  The No Child Left Behind Act reflects a bipartisan legislative commitment to make good on that promise.

The clock is ticking for the Bush Administration.  When its time expires, let’s hope that the dreams and opportunities of millions of disadvantaged schoolchildren do not expire with it.

Dianne M. Piché is executive director of the Citizens’ Commission on Civil Rights.  Clint Bolick is president and general counsel of the Alliance for School Choice.  While they and their organizations have held divergent views on education policy matters, they are both strong supporters of NCLB’s public school choice provisions.