ASHINGTON, Nov. 26 — Children attending public schools deemed failing under a new federal law have to be offered transfers to better schools, regardless of whether those schools are already full, according to final regulations released today by the federal Education Department.
The new regulations, which are more stringent than expected, could leave hundreds of districts scrambling for alternative places for children who want to transfer out of poorly functioning schools.
The new regulations do not oblige school districts to adopt specific solutions. At a news conference here today, Education Department officials said that schools might consider signing contracts with neighboring districts to accept students from failing schools, hiring more teachers or building new classrooms at more successful schools.
But critics suggested the administration was quietly paving the way for vouchers to private schools as the answer when districts could come up with nothing else. In earlier discussions of the new law, known as No Child Left Behind, officials had said there would be one acceptable reason for denying children transfers: lack of capacity in good schools. But in today's regulations, federal officials eliminated that excuse.
The federal government declares a school to be failing when students in any category — black, Latino, special education or those with limited English — fail to close the achievement gap on standardized tests two years in a row.
Taken together, the final regulations amount to a sweeping effort on the part of the government to change the way Americans think of education, acknowledged Eugene W. Hickok, the department's undersecretary.
"Public school choice and supplemental services should be part of how we see public education in America," Dr. Hickok said.
He denied, however that the regulations were meant to reintroduce vouchers, which President Bush pressed for briefly at the start of his administration. "That came off the table pretty quickly; it has not come back on the table," Dr. Hickok said. "The agenda is not hidden, it's obvious. It's producing better schools.
"The law creates this opportunity, and human nature being what it is, as more and more people understand it, there's going to be growing demand to take advantage of those opportunities and the response cannot be simply, `Sorry we don't have room,' " Dr. Hickok added. "That will produce real frustration."
Critics, however, contend that the Education Department's regulations are aimed at creating conditions that would make the case for private school vouchers, as school districts with many subpar schools and few empty seats at better schools fail to deliver on the law's promise.
"They're saying that parental choice is the supreme good, and everything has to give way to it," said Jack Jennings of the Center on Educational Policy. "It sends a signal that, hell or high water, the federal government's requirements override everything else, and it's not just what the Congress wrote, but what the Education Department thinks it should say."
The law, as signed by President Bush last January, was not entirely clear regarding school choice. It promised children in schools that failed to make adequate progress the option to transfer to a more successful school, but it also said priority should go to the poorest children in the worst performing schools.
Up to 20 percent of a school district's Title I money — earmarked for impoverished schools — would have to go for transportation out of failing schools and for private tutoring of the children who stayed in the struggling schools.
In discussions last summer, when some 8,600 schools around the country were identified as failing, Education Department officials said that the only valid reason for denying children transfers was a lack of capacity, which officials defined as physical limitations to comply with fire and safety regulations. Local initiatives to limit class sizes, as well as federal desegregation orders, would have to take a back seat to the new education law, officials said.
Today's regulations went further, saying that No Child Left Behind "does not permit" a local school district "to preclude choice options on the basis of capacity constraints," and that all children attending failing schools have the right to transfer out. Education Department officials contend that overcrowding at a school is a valid reason for denying a student admission to that school, but not for denying pupils the right to transfer to other successful schools.
Nevertheless, educators around the country were uncertain how the law would be carried out if many parents opted to move their children. Recent surveys have shown that roughly half of all parents have never heard of the new law, and many more are unaware of the specific promises it makes for children to escape failing schools.
Last September, few school districts offered all children in failing schools the option to transfer, and few parents sought it.
With time, the law is expected to result in vast numbers of schools being designated as failing. In a recent interview, Sandy Kress, a lawyer who represented the White House in drafting the law and who now advises states on carrying it out, predicted that 50 to 90 percent of the schools in some states might be found inadequate.
That is because schools must show that all kinds of students, including those in special education or with little English, have improved on standardized tests. The law also requires that schools make substantial progress toward closing the gap between racial minorities and white students to avoid failure.
One aspect of the new law that remains unclear is how school districts would finance the changes.
"It's totally unfair to expect schools to perform without adequate resources," said Reg Weaver, president of the National Education Association, the country's largest teachers union. "It's next to impossible."
Supporters of vouchers and charter school said they were pleased with the regulations.
Jeanne Allen, president of the Center for Education Reform, predicted that the regulations would produce "constructive chaos."
"You've got awareness of options, frustration that there aren't enough options, and more awareness of failing schools," she said. "That combined with the fact that in some states we have completely new legislatures that are more reform-minded may spark them to look into capacity as an issue, and creating more supply."
The final regulations also upheld an earlier draft that said teachers in fast-track alternative certification programs could be considered "highly qualified," even before they finished their training. Following criticism that these programs vary in quality, the regulations specify that the teacher programs must provide "sustained, intensive and classroom-focused" training to meet the law.