The Government Accountability Office (GAO) has released a nearly year-long investigation and analysis of the Department of Education’s standards and guidelines for how special ed teachers can meet “Highly Qualified Teacher??? (HQT) requirements. We’re treated to the none-too-astounding revelation that states haven't figured out what their teachers are supposed to do because different offices at Education don’t communicate sufficiently with each other and are sending states mixed messages. According to the GAO, it's apparently not just the intelligence community that has a problem.

The GAO doesn’t shed any light on states' confusion either. Instead, its report comments repeatedly on the vague, confusing advice coming from Education. OK, so the GAO gets its digs in at Education, but we’re none the wiser. We decided to conduct a one-day investigation and analysis, and here's what we found:

NCLB demands that special ed teachers who are in charge of their own classrooms must prove their subject matter competency--no ifs, ands or buts about it. But no one, including Education officials, has come up with a way to enforce this hard and fast rule without exacerbating shortages of special ed teachers. So you find a little dancing going on, with the Department unwilling to admit that nothing in the law or its guidance will prevent states from making a mockery of the law and doing pretty much whatever they want. Meanwhile states are already developing and will come up with still more new and silly ways for teachers to prove they are HQ, continuing to skirt any opportunity that the law may have provided to prompt them to cultivate new and maybe better sources of special ed teachers.

Here, unfortunately, is how this can all play out. Think of a new high school teacher, assigned to teach a self-contained special ed class and therefore responsible for all four core content areas. Since she’s at the high school level, she’s theoretically held to NCLB's requirements for high school teachers, even though her students may be operating at a much lower level. Since it's pretty unlikely that she'll have earned a major in four content areas, she'll most likely have to meet the law's requirements by taking some sort of test in each area, demonstrating fairly specific knowledge about, for example, the Hundred Years War, geometric proofs, and the differing reactions of carbon- and nitrogen-based compounds. In theory, this demonstration would be wonderful, but the prospect may prove a bit daunting to aspiring special ed teachers. They'll quickly surmise that taking one subject matter test is a whole lot better than taking four and decide to steer well clear of a career in special ed. Ouch.

The Department is quite aware of this problem, so it's telling states to use the "flexibility" available to them in US ED guidance. Read between the lines and there the rather ugly answer lies.

Flexibility means that a state would be acting appropriately to lower the standards that such teachers must meet, however and as low as it sees fit. And then there are all the process issues of deciding when such flexibility would be permitted, who has to approve it, and what to do about changes in teachers’ assignments.

But let's pretend that all those details get decided somehow. Instead of a special ed teacher having to take four exams aimed at high school level teaching, a state might decide that she could take a general knowledge exam designed for elementary teachers, covering all the same subjects but a mite bit easier. So instead of having to know about the Hundred Years War, she might only have to know that there was a Civil War at some point in American history, or maybe just that war is bad and peace is good.

Or, alternatively, a state could still require our novice teacher to take the high school exam, but it could lower the cut score needed to pass to rock bottom. People don't pay much attention to those scores anyway; they just want to know who passed and who failed. Maybe the state decides she earns HQ status if she gets as few as 5 questions right out of 100 on the Praxis exams. There's absolutely nothing in the Department's guidance that says states can’t do this. And we could debate for a long time whether such federal control would be appropriate.

The point here is not that states will necessarily diss the law's intent so flagrantly, and we absolutely do not want to imply that they should, but they clearly have the legal option to do so. When no strict standard is set and states are told to “tailor a test??? to the level or content they deem necessary, it brings out the temptation to set a low, low standard, since technically they’re still within the letter of the law.

What's the alternative? Some would argue for more regulation from the feds, but when has that ever worked well? Certainly, more transparent public reporting is in order. The Secretary needs to annually reveal not just whether states are meeting the requirements of HQT but HOW they are doing so. A little shame goes a long way.

And states aren't being aggressive enough about exploring new routes for producing more special education teachers. Alternative routes into the profession such as Teach For America and The New Teacher Project have repeatedly proven that they can capture a whole slice of the potential market that traditional programs are missing. States need to understand that unless they remove some of the obstacles to the profession they are only hurting themselves. Retaliation for federal intrusion may seem sweet, but the real victims are our children.