Public school choice was the great promise of NCLB. It gave students in failing schools an escape hatch and reinforced NCLB's commitment to every child by providing low-income families with options long enjoyed by more affluent families.

Tragically, that promise has gone almost completely unfulfilled. Today, 1 percent of eligible students have participated. Districts across the nation frustrate its implementation and few eligible families know the option exists. Even school choice supporters Rick Hess and Checker Finn say it's unworkable in its current form and that access to supplemental educational services should leapfrog it in the sequence of NCLB sanctions. The failure of public school choice is the greatest disappointment of NCLB's three-year history—and the greatest unkept promise to America's children.

Yet the U.S. Department of Education recently announced a "new path" for NCLB that appears to give states even more latitude in the law's implementation. Secretary Spellings listed areas of the law that were non-negotiable: annual testing, disaggregated results, and highly qualified teachers. Conspicuously absent was public school choice. (Also missing were supplemental services.)

Given that this feature of NCLB hasn't worked so far, that states and districts find it intolerably burdensome, that even some education reformers have doubts about it, and that the Department is inviting NCLB waiver requests, it doesn't take a psychic to see what's about to happen.

The Department should not only reject every request for flexibility over this provision; it should redouble its efforts to ensure that public school choice is fully and faithfully implemented. Moreover, it's time to ask Congress to strengthen the Department's hand in administering it.

Here's why. First, Congress provided school choice as the first consequence of "in need of improvement" status because kids in failing schools need access to a better school right away, not after other remedies have failed. Disadvantaged kids have been inadequately served for generations and, despite a revolving door of reforms, the achievement gap remains. Yes, we hope the school turnaround features of NCLB work, but it's not inevitable.

In truth, we should be outraged by the failure of public school choice. Imagine if Medicare or Medicaid had a one percent participation rate among eligible people. Then imagine someone offering as an explanation, "low-income and elderly people don't want health care" or "it's inconvenient for hospitals to treat them." We'd be furious. Legislative and executive heads would roll. Yet we tolerate both a one percent participation rate in public school choice and the explanation that "low-income and minority families don't want it." Then why do parents wait in line overnight to register for voucher programs? Why do the majority of charter schools have long waiting lists?

The real reason for the low participation rate is districts' disinclination to make it work. For it to succeed, districts would have to publicize their failings, then rearrange staffing assignments and bus routes and help parents become more discerning about school differences. Perish forbid. Hence the indecipherable registration forms, notices mailed to parents after the school year begins, and brief sign-up periods.

The other reason is lack of capacity. Most urban school systems have far more failing schools than successful ones, meaning vastly more choice-eligible students than seats to hold them. So when parents do become aware of their eligibility, they're often told they can't be accommodated. And just about nobody has lifted a finger to augment the supply.

In fairness to the Department, its Office of Innovation and Improvement has hectored and cajoled admirably. But the fact remains: the choice option has been execrably implemented in most communities.

What to do? First and foremost, keep up the pressure. That means no waivers and persistent, thorough oversight. It means withholding Title I funds from recalcitrant districts. Tough medicine, but well worth it.

The Department should also expand its direct funding of third party efforts to inform parents of their eligibility. It also makes sense to separate the notification function from districts and require states to provide Title I funds to other groups to carry out this job.

If constant pressure is applied, states will be likelier to make the policy changes necessary to create greater capacity: removing charter caps, approving additional charter authorizers, allowing out-of-district transfers, and including private and parochial schools as transfer options.

If the Department finds it doesn't have the authority to apply pressure, Congress needs to provide it, most importantly the authority to withhold Title I funds. Congress also needs to include inter-district, private, and parochial school transfers. The present system leaves disadvantaged kids with a right recognized by Congress but no way to exercise it.

No provision better typifies the thrust of NCLB or has greater potential to change school operations and help kids immediately. The lack of success to date should be met with continued pushing, not backing down.

Andy Smarick ([email protected]) is director of the Charter School Leadership Council and a member of the Maryland Governor's Commission on Quality Education.

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