School districts nationwide follow letter of the law to eliminate subgroups from federal test results

States are helping public schools escape potential penalties by skirting the No Child Left Behind law's requirement that students of all races must show annual academic progress.

With the federal government's permission, schools aren't counting the test scores of nearly 2 million students when they report progress by racial groups, an Associated Press computer analysis found.

Minorities -- who historically haven't fared as well as whites in testing -- make up the vast majority of students whose scores are being excluded, AP found. And the numbers have been rising.

"I can't believe that my child is going through testing just like the person sitting next to him or her and she's not being counted," said Angela Smith, a single mother. Her daughter, Shunta' Winston, was among two dozen black students whose test scores weren't broken out by race at her suburban Kansas City, Mo., high school.

Under the law championed by President Bush, all public school students must be proficient in reading and math by 2014, although only children above second grade are required to be tested.

Schools receiving federal aid also must demonstrate annually that students in all racial categories are progressing or risk penalties that include extending the school year, changing curriculum or firing administrators and teachers.

The U.S. Education Department said it didn't know the breadth of schools' deliberate undercounting until seeing AP's findings.

"Is it too many? You bet," Education Secretary Margaret Spellings said in an interview. "Are there things we need to do to look at that, batten down the hatches, make sure those kids are part of the system? You bet."

Students whose tests aren't being counted in required categories include Hispanics in California who don't speak English well, blacks in the Chicago suburbs, American Indians in the Northwest and special education students in Virginia, AP found.

Bush's home state of Texas -- once cited as a model for the federal law -- excludes scores for two entire groups. No test scores from Texas' 65,000 Asian students or from several thousand American Indian students are broken out by race. The same is true in Arkansas.

One consequence is that educators are creating a false picture of academic progress.

"The states aren't hiding the fact that they're gaming the system," said Dianne Piche, executive director of the Citizens' Commission on Civil Rights, a group that supports No Child Left Behind. "When you do the math ... you see that far from this law being too burdensome and too onerous, there are all sorts of loopholes."

The law signed by Bush in 2002 requires public schools to test more than 25 million students periodically in reading and math. No scores can be excluded from the overall measure.

But the schools also must report scores by categories, such as race, poverty, migrant status, English proficiency and special education. Failure in any category means the whole school fails.

States are helping schools get around that second requirement by using a loophole in the law that allows them to ignore scores of racial groups that are too small to be statistically significant.

Suppose, for example, that a school has 2,000 white students and nine Hispanics. In nearly every state, the Hispanic scores wouldn't be reported because there aren't enough to provide meaningful information.

State educators decide when a group is too small to count. And they've been asking the government for exemptions to exclude larger numbers of students in racial categories. Nearly two dozen states have successfully petitioned the government for such exemptions in the past two years. As a result, schools can now ignore racial breakdowns even when they have 30, 40 or even 50 students of a given race in the testing population.

Students must be tested annually in grades 3 through 8 and at least once in high school, usually in 10th grade. This is the first school year that students in all those grades must be tested, though schools have been reporting scores by race for the tests they have been administering since the law was approved.

To calculate a nationwide estimate, AP analyzed the 2003-04 enrollment figures the government collected -- the latest on record -- and applied the current racial category exemptions the states use.

Overall, AP found that about 1.9 million students -- or about 1 in every 14 test scores -- aren't being counted under the law's racial categories. Minorities are seven times as likely to have their scores excluded as whites, the analysis showed.

Less than 2 percent of white children's scores aren't being counted as a separate category. In contrast, Hispanics and blacks have roughly 10 percent of their scores excluded. More than one-third of Asian scores and nearly half of American Indian scores aren't broken out, AP found.

Ms. Smith's family in Missouri demonstrates how the exemptions work. Shunta' and other black children in tested grades at Oak Park High School, which is in a mostly white suburban Kansas City neighborhood, weren't counted as a group because Missouri schools have federal permission not to break out scores for any ethnic group with fewer than 30 students in the required testing population.

"Why don't they feel like she's important enough to rearrange things to make it count?" her mother asked.

In all, more than 24,000 tests taken by minority children in Missouri aren't being counted as groups, AP's review found. Other states have much higher numbers. California, for instance, isn't counting the scores of more than 400,000 children. In Texas, the total is about 257,000.

State educators defend the exemptions, saying minority students' performance is still being included in their schools' overall statistics even when they aren't being counted in racial categories.

Scott Palmer, a consultant for the Council of Chief State School Officers in Washington, said he hoped critics will focus on the 23 million children whose scores are being counted by schools rather than those whose scores aren't reported separately.

"There's a huge positive feeling for the notion" of making schools accountable, Palmer said. "It's a huge plus."

Spellings said she believes educators are acting in good faith. "Are there people out there who find ways to game the system? Of course," she said. "But on the whole ... I fully believe in my heart, mind and soul that educators are people of good will."

Bush has hailed the separate accounting of minority students as a vital feature of the law. "It's really essential we do that. It's really important," Bush said in a May 2004 speech. "If you don't do that, you're likely to leave people behind. And that's not right."

Nonetheless, Bush's Education Department continues to give widely varying exemptions to states:

* Oklahoma lets schools exclude the test scores from any racial category with 52 or fewer members in the testing population, one of the largest across-the-board exemptions. That means 1 in 5 children in the state don't have scores broken out by race.

* Maryland, which tests about 150,000 students more than Oklahoma, has an exempt group size of just five. That means fewer than 1 in 100 don't have scores counted.

* With one of the most diverse school populations in the nation, Florida has been allowed to create a special "provisional," or probationary, category for schools that are failing to meet the law's requirements. The deal helped reduce the number of failing Florida schools from 73 percent in 2003 to 37 percent in 2004.

* Washington state has made 18 changes to its testing plan, according to a February report by the Harvard Civil Rights Project. Vermont has made none. On average, states have made eight changes at either the state or federal level to their plans in the past five years, usually changing the size or accountability of subgroups whose scores were supposed to be counted.

Toia Jones, a black teacher whose daughters attend school in a mostly white Chicago suburb, said the loophole is enabling states and schools to avoid taking concrete measures to eliminate an "achievement gap" between white and minority students.

"With this loophole, it's almost like giving someone a trick bag to get out of a hole," she said. "Instead of figuring out how do we really solve it, some districts, in order to save face or in order to not be faced with the sanctions, they're doing what they can to manipulate the data."

Some students feel left behind, too.

"It's terrible," said Michael Oshinaya, a senior at Eleanor Roosevelt High School in New York City who was among a group of black students whose scores weren't broken out as a racial category. "We're part of America. We make up America, too. We should be counted as part of America."

Spelling's Education Department is caught between two forces. Schools and states are eager to avoid the stigma of failure under the law, especially as the 2014 deadline draws closer. But Congress has shown little political will to modify the law to address their concerns. That leaves the racial category exemptions as a stopgap solution.

"She's inherited a disaster," said David Shreve, an education policy analyst for the National Conference of State Legislatures. "The 'Let's Make a Deal' policy is to save the law from fundamental changes, with Margaret Spellings as Monte Hall."

The solution may be to set a single federal standard for when minority students' scores don't have to be counted separately, said Ross Wiener, policy director for the Washington-based Education Trust.

The law originally created the exemptions to make sure schools didn't unfairly fail schools or compromise student privacy when they had just a small number of students in one racial category, Wiener said.

But there's little doubt now that group sizes have become political, said Wiener, whose group supports the law.

"They're asking the question, not how do we generate statistically reliable results, but how do we generate politically palatable results," he said.