High-performing districts such as the Fremont Union High School District and the Cupertino Union School District made a list of districts needing improvement, which is where institutions are placed when they do not meet their goals for two years in a row.

The issue is not unsatisfactory test scores for the two local districts but the required rate of test-taking participation across all student groups. No Child Left Behind sets that requirement at 95 percent. In Fremont Union, the parents of two learning disabled students opted for their children not to take the yearly API standardized tests, which is their right under state law. That choice pushed the disabled subgroup to a 93 percent participation rate.

"We're not trying to not test everyone," said Cindy McArthur, communications manager for Fremont Union. "We've seen our participation rate go up in a number of categories, but the 2003­04 school year was our second year in a row of noncompliance."

In the 2002­03 school year, the participation rates in several subgroups placed below the benchmark. McArthur said that English language learners took the API tests that year at an 89 percent participation rate, and the rate for the socioeconomically disadvantaged group was at 92 percent.

A year later, both rates jumped. Ninety-eight percent of English language learners took the test, and for socioeconomically disadvantaged students, the participation rate went up to 95 percent in language arts and 96 percent in math.

But that same year, the participation rate for disabled students dipped. In the 2002­03 school year, the rates were 95 percent in language arts and 98 percent in math. Last year, they were 93 percent in language arts and 95 percent in math. McArthur said the difference between compliance and noncompliance was two students.

Despite the fact that the participation rates were in different subgroups, the district's performance as a whole was deemed to be in violation of the No Child Left Behind Act for two straight years. The legislation classifies such districts in Program Improvement, and parents receive letters about the district's status. The act also states that such districts could be subject to state takeover if they do not improve.

But improving participation rates is a bit of a conundrum with California law allowing parents to pull their children from standardized testing. Cupertino Union Communications Manager Jeremy Nishihara said this was a similar issue in his district. Six students in the district's special education program did not take the math portion of the API test in 2003­04, which pushed that district into noncompliance after similar rates the year before.

"We don't know why their parents didn't want them to take the test, and they don't have to say why," Nishihara said. "The state allows parents to opt out of the test, but I can't imagine the state coming in here to take over because of a participation rate issue."

No Child Left Behind has been controversial since its passage in 2001 because of what some educators call its inflexible rules. The legislation aims to have all students proficient in their state's educational standards by 2014, no matter what disabilities or language issues they may possess.

"The federal government is being extremely inflexible on their criteria," Nishihara said. "This is not a performance issue."

The California Department of Education had been grappling with the federal government over which schools could be placed on the Program Improvement list. The state had been placing schools on the list in accordance with its own accountability model, which allows for testing participation rates of 90 percent, but that arrangement didn't meet the new federal standard.

State Superintendent of Public Instruction Jack O'Connell announced the agreement with the U.S. Department of Education on March 8. The agreement upped the number of districts labeled Program Improvement from 14 to 150, with another 310 placed on a watch list. Districts will also now be able to average several grades into one set of data to determine Program Improvement.

"I am pleased that after significant negotiations we were able to reach a tentative agreement with the federal government that allows California to approach the issue of identifying districts for Program Improvement in a more sensible way," O'Connell said in a statement. "Nevertheless, I remain concerned that No Child Left Behind's limited flexibilities tie California's hands when it comes to truly helping our most challenged schools improve."

McArthur said that Fremont Union had not received formal word from the state about the district's new status, and Nishihara added that districts are also waiting to hear from the state about what they can do to remove themselves from the list.