a division of Home School Legal Defense Association
May 11, 2000

Testimony of Christopher J. Klicka, Esq.

NAGB and NAEP Reauthorization Hearing Before the House Subcommittee on Early Childhood, Youth and Families
Michael Castle, Chairman

My name is Christopher J. Klicka, and I presently serve as Senior Counsel of the Home School Legal Defense Association and Executive Director of the National Center for Home Education. For the last 15 years, I have worked in the area of education law—in the courts, state legislatures, and Congress. I have litigated cases involving state assessments, researched many issues regarding testing, written on testing research in two published books and numerous articles and commissioned surveys on testing results of home schoolers. I have drafted state legislation and testified before state legislative committees in many states regarding testing and other education issues of concern to home schoolers. I have worked with dozens of state boards and departments of education and thousands of local school districts to resolve conflict over educational issues involving home school families. I also testified before this Subcommittee on NAEP on June 11, 1998.

The Home School Legal Defense Association is a nonprofit legal advocacy organization dedicated to protecting parental freedom generally and promoting home schooling specifically. We have almost 70,000 member families at present.

One of the Home School Legal Defense Association’s goals is to limit the federal role in education and return such powers to the states. We are concerned that the gradual expansion of NAEP and the increasing role of NAGB will lead to nationalizing education standards, curriculum, and testing. What gets tested will get taught.

History of NAEP’s Gradual Expansion

The members of this Subcommittee are aware that the concept for a national student achievement indicator first originated in 1963 when the Commissioner of Education decided to collect information on the state of the nation’s schools. By 1969, NAEP was created in order to survey the long-term trends in pupil achievement by measuring the progress of a sampling of students in the nation’s schools, primarily in the area of Reading, Writing, Math, and Science. By 1988, NAEP’s role was significantly expanded, authorizing development of state assessments which could be used by the states to test their students. At this time, NAGB was also organized for the purpose of overseeing and setting policy for NAEP. Finally, in 1994 Congress expanded the data that NAEP could collect and authorized state assessments as a regular feature of NAEP. Now NAGB is researching a national individualized test.

The direction is clear. The expansion of NAEP and NAGB is leading us into a nationalizing of education testing and standards that will by default, lead to a national curriculum. In a CRS Report titled National Assessment of Educational Progress: Background and Reauthorization Issues, education finance specialist Wayne Riddle confirms this direction: “Given the impossibility of modifying NAEP to match the differing curricula in various states or LEAs [local education agencies], states and LEAs would likely have substantial motivation to modify their curricula to more closely match NAEP’s curriculum frameworks.”

We represent nearly 70,000 home school families throughout the nation. They do not want national education standards and testing dictated by the federal Department of Education. Home schoolers and a majority of Americans want local control of education. We are not a part of the education elite. The concern we are sharing with you is a grassroots concern of parents.

In 1997 and 1998, an unprecedented outcry arose against President Clinton’s proposal to create a national test. Both the House and the Senate passed bans prohibiting the implementation of such a national test and it was signed into law in 1998. However, I believe that the gradual expansion of the NAEP survey into more and more subject areas covering more and more students is undermining this clear mandate from Congress and the People of the United States against national testing and national education standards.

NAEP Is Evolving Into a National Test

In 1988, Congress passed the Hawkins-Stafford amendments that expanded NAEP to provide state-by-state reporting. In the spring of 1990, 40 states and territories participated in a NAEP mathematics assessment. In 1992, the state assessments continued with math at grade eight and math and reading at grade four. In 1994, NAEP state level assessments were given in reading at grade 4. In 1998, NAEP state level reading assessments were given in both grades four and eight.

In 1996, 94,142 students took NAEP’s “Main” assessment, and 29,798 students took the “ Long Term Trend” NAEP. In that same year 355,851 students in 43 states plus the District of Columbia took the state-developed test.

NAEP is beginning to shape state testing policy.

In February of 1998, the New York State Department of Education announced that they were replacing their 15-year-old Pupil Evaluation Program (PEP) with a new assessment. They specifically changed the testing schedule to fourth and eighth grades in order to pattern it after the NAEP state assessment conducted by the U.S. Department of Education in the fourth and eighth grades. The results of the two tests will be compared and subsequent adjustments made to the New York tests.

The Home School Legal Defense Association surveyed a number of State Departments of Education in order to determine the impact of NAEP on education policy in their state. In Georgia, the NAEP Coordinator of Testing and Evaluation indicated discussions were taking place about making the NAEP state assessment the primary assessment in the future.

In Michigan, the NAEP Coordinator for the Michigan Educational Assessment Progress indicated NAEP was used to affect education policy. In some states, the State Departments of Education chose and mandated certain school districts to participate in NAEP.

On June 11,1998, this Subcommittee held a hearing concerning NAEP. Two witnesses confirmed the impact NAEP has on shaping their state education and testing policy. Nancy Doorey, a member of the Delaware State Board of Education, explained that “the NAEP standards have become invaluable to state education leaders who use them to help develop and benchmark their own content and performance standards and to inform policy decisions.” We also heard from Dr. Michael E. Ward, the North Carolina Superintendent of Public Instruction, who admitted his staff “is looking at the feasibility of tying NAEP achievement levels to the levels we use to gauge student performance. . . . We intend to make more use of NAEP in the future.”

On February 28, 1997, University of Kansas Professor John Poggio, in a meeting to discuss national testing at the U.S. Department of Education’s Office of Educational Research and Improvement, declared, “There is a sense, I think we all recognize, that what gets tested is what gets taught.” He further told the Department of Education, “And you’re saying you’re not controlling American curriculum? All of us here will sit and tell you what we put on those booklets is what gets the attention of the teachers. You are altering what is going to be taught. You need to be aware of that.”

At the same meeting, Rebecca Kopriva of the Delaware Department of Education echoed those sentiments, “We can’t afford [at the state level] to have our tests to be significantly different than yours [national test]-even if we think it is significantly better-because this is going to drive a lot of what we’re doing.”

On the June 11, 1998 hearing before this Subcommittee, NAGB’s Vice Chairperson, Mary Blanton, drew a distinction between the establishment of a national curriculum and the establishment of a national test saying, “We are not making curriculum frameworks, but rather, assessment frameworks.” However, we disagree. There is no real distinction, because national assessment frameworks created by NAGB will dictate a national curriculum framework. What gets tested, will be taught.

States are already in the process of making adjustments to their testing and education policies in light of the NAEP state assessment. By default, NAEP, as it is applied to a growing number of students through the NAEP state assessments, will create national standards and a national curricula.

End Run Around Congress’ Ban on National Testing?

In October 1998, Congress made its will known by enacting the following amendment: “no funds provided to the Department of Education or to an applicable program, may be used to pilot test, field test, implement, administer or distribute in any way any federally sponsored national test in reading, mathematics, or any other subject that is not specifically and explicitly provided for in authorizing legislation enacted into law.” 20 U.S.C. 1232j(a) Section 447(a).

It appears that the Department of Education, whose Secretary appoints the NAGB members, does not think Congress is serious in this regard.

The National Assessment Governing Board (NAGB), who is presently overseeing the “dormant” Voluntary National Test (VNT), is moving forward, not only in developing the VNT, but they were ready to “pilot test” questions as well.

This is a direct violation of the law prohibiting such action. Appropriated funds that had been originally designated for the development of the VNT are still being used to advance this prohibited test.

On February 18, 2000, the National Assessment Governing Board (NAGB) published a federal register notice to “conduct two research and validation support studies.” The first study would “provide information on the feasibility of a calibration linkage between the proposed Voluntary National Test (VNT) and the National Assessment of Educational Progress (NAEP).”

4800 students from Grade 4 and 4800 students from Grade 8 were expected to participate in this study.

This contract was essentially a “pilot test” or a “field test” which was specifically prohibited by law.

After it was brought to Chairman Goodling’s attention, NAGB cancelled the contract.

The Education Committee staff met with NAGB staff who did not “interpret” having 9600 students participating in “testing questions” as constituting a “field or pilot test.”

The Department of Education and NAGB demonstrated their intent to link a national test to NAEP. The concerns of parents that NAEP is “creeping” toward a national test are a reality.

NAEP Is Gradually Expanding the Subjects Tested

At its inception in 1969, NAEP’s purpose was simple, straightforward, and important: to test a representative sampling of students (9, 13, and 17 year olds) in order to document changes in academic performance over time in the limited areas of Reading, Writing, Math, and Science. This is still the purpose of the “Long Term Trend” NAEP assessment.

Through subsequent amendments to this legislation and the addition of the “Main” NAEP assessment, the NAEP survey was expanded to include History, Civics, Arts, economics, and Foreign Languages. NAEP will not only eventually dictate standards and curricula in the mechanical areas of Reading, Writing, Geography, and Arithmetic, but it is reaching into many value-laden areas such as History, Civics, Arts, and Economics. States are beginning to use NAEP’s state assessments in these subject areas as well. Where will it stop? What extent of influence will the federal Department of Education through NAGB have over our entire educational system? Is NAEP leading us to less federal control of education, or more? Congress needs to narrow the subject areas tested.

Problems with the Background Questionnaire

In addition to taking the tests, students must fill out a background questionnaire. NAGB is gradually changing the nature of the background questions that accompany the NAEP tests. Presently, information is collected on race, gender, language spoken in the home, homework habits, participation in federal programs for disadvantaged, and experience with the subject area. Recommendations have been made to include family income, parental occupation, and post-secondary educational plans, among others.

Much of this background information is raising questions with many and is only minimally useful for analysis purposes. Such an invasion of students’ privacy should not continue. The amount of background information collected must be reduced in order to make NAEP more cost efficient and enable a quicker turnaround time for publishing the test scores.

NAGB: The National School Board?

NAGB’s 25-member board, appointed by the Secretary of Education, develops the framework for this testing, hires consultants to create the questions, and retains the authority to finally approve the questions. NAGB selects subject areas to be assessed, develops student performance levels, develops assessment objectives, develops standards for interstate, regional, and national comparisons, and takes actions needed to improve the form and use of the National Assessment. In essence, NAGB is acting like a national school board in ultimately dictating what is taught in our schools to our children by controlling these decisions. An appointed 25-member board, rather than an elected 435-member Congress, is shaping the future of education in America. NAGB’s authority, established in 1988, needs to be curbed and limited by Congress through statute. Most importantly, Congress must take the authority to appoint NAGB members from the Secretary of Education and transfer that authority to a bipartisan committee of elected representatives (such as members of House and Senate Education Committees).

Recommended Solutions

To accomplish the return of NAEP to its original intent we recommend the following amendments:

  1. In 10 U.S.C. § 9010 (b), the purpose of the national assessment should be limited to provide “a fair and accurate presentation of educational achievement in reading, writing, math and science.” The language which states “and the other subjects included in the third National Education goal” should be deleted. Congress should restore NAEP to its original limited scope of subjects and avoid value-laden subject areas.
  2. Also in subsection (b), all references to the authority of NAGB to create state assessments should be removed. Americans want local control of education. Let the states and localities create and implement their own state assessments without the direction and control of the federal education bureaucracy. Many private standard tests are available for states to use as well.
  3. Congress should narrow its priorities to focus on using NAEP’s “Long Term Trend” assessment rather than its “Main” assessment. The content of the “Long Term” assessment does not change over time, allowing for the assessment of year-to-year changes and measure long term trends. The “Long Term Trend” assessment monitors Reading, Writing, Math, and Science. The “Main” assessment, on the other hand, is too vague since its content and structure is regularly revised to reflect more current views and practices in instruction and curriculum. This shift in focus would restore the earlier purpose of NAEP to measure long-term trends in pupil achievement for the nation as a whole.
  4. “Background information” should be specifically limited to traditional demographic reporting variables, specifically delineated and defined by Congress. This will curb the endless curiosity of Department of Education bureaucrats and limit federal invasion of privacy by NAGB. This type of information must not be allowed to grow into a national database of students tested.
  5. Congress should add language that would specifically prohibit the NAEP assessments from being redesigned by NAGB as a national individualized test. Such language should say:
    Notwithstanding any other provision of federal law, funds provided the Department for an applicable program or for NAEP assessments should not be used to develop, plan, implement, or administer any national individualized testing program.


NAEP needs to be cut back to its limited purpose established in 1969. In its present expanded form, NAEP testing will lead to a national curriculum, influencing the content of textbooks and teaching materials. NAEP state assessments will conflict with state standards and force them to be adjusted to conform to the NAEP test. To allow the continued expanded use of NAEP tests is a waste of money since there are many national private and state tests already being administered which accurately measure student progress throughout the states. Expanding NAEP testing is unneeded. Parents want real education reform. During debate on the House floor in 1998, House Education and Workforce Committee Chairman Rep. Bill Goodling stated in opposition to national testing, “You don’t make cattle fatter by weighing them on the scales more often.”

We urge the Subcommittee members to narrow NAEP, keep it from becoming a national test, and return it to its original purpose.

Respectfully submitted,

Christopher J. Klicka
Senior Counsel
Home School Legal Defense Association
P.O. Box 3000
Purcellville, VA 20132
(540) 338-5600