But in an agreement to be announced here on Monday, Secretary of Education Arne Duncan will allow Montana to keep most of the schools off the law?s blacklist, and the state will pay no penalty.
With several other Western states also rebelling against the requirement that 100 percent of American students be proficient in English and math by 2014, some education officials and experts see signs that years of federal dominance of public school accountability may be drawing to a close.
?Pretty soon all the schools will be failing in America, and at that point the law becomes meaningless,? said Larry K. Shumway, superintendent of public instruction in Utah. ?States are going to sit and watch federal accountability implode. We?re seeing the end of an era.?
It is no secret that the Obama administration dislikes many provisions of the No Child law, which President George W. Bush signed in 2002 and vigorously enforced, in court and with fines against states ? including Texas, his own.
Mr. Duncan has called the law a ?slow-motion train wreck,? tried unsuccessfully to get Congress to rewrite it, and last week promised to provide waivers this fall to states that sign on to the president?s school improvement agenda, with criteria similar to those in his Race to the Top grant competition.
Mr. Duncan says he is still devising the new waiver policy, and his office denied waiver requests lodged by Arkansas and Kansas this spring.
But when officials in Montana and a handful of other states simply refused to follow the strictures of the No Child law in recent weeks, his aides quietly helped them find provisions in the law that avoided a public showdown, signaling a more profound shift.
Here in Montana, 158 schools were to be newly labeled failures. But that number fell to three when federal officials allowed the state to redraw its schedule of testing targets, a critical component of the No Child law?s ambitious approach to forcing all schools to show steady progress toward 100 percent proficiency.
?Secretary Duncan is disassembling what was a very strong federal role, and some states? rights officials and governors smell blood,? said Bruce Fuller, a professor at the University of California, Berkeley, who has written academic studies on the No Child law. ?This is a big federalist chess game. Until now, Washington has had the stronger position. Going forward, states will be stronger.?
The uprising by states began in April, when Denise Juneau, Montana?s superintendent of public instruction, was calculating how many of her schools would not reach their targets this year.
Of the state?s 821 public schools, 225 had already fallen short. If the targets, which the law calls annual measurable objectives, rose again as scheduled, that number would increase to 383, including many schools that Ms. Juneau said were raising student achievement.
In Bozeman, a university town where at least 90 percent of students scored above proficiency in reading this spring, 8 of the 10 schools would nonetheless have failed to meet rising targets.
On April 25, Ms. Juneau wrote to the education secretary asking for ?some alleviation of the strict across the board, one-size-fits-all, absolute bar of 100 percent proficiency.? Six weeks later, she hosted a meeting of school chiefs from 10 rural states and passed around her defiant letter.
?We?re not asking for permission,? Ms. Juneau told the group. ?We?re just telling them we won?t raise our annual objectives this year.?
Diane DeBacker, the education commissioner in Kansas whose waiver request federal officials had already denied, did not follow suit. ?Kansas is just not that rebel a state,? she said in a June interview. But the superintendents in Idaho and Utah soon sent their own letters to Washington.
?It is our intention to not increase the annual measurable objectives for the 2011 school year,? Mr. Shumway of Utah wrote, bluntly.