The federal No Child Left Behind law may not be accounting for all Wisconsin minority students. According to a recently released Associated Press analysis, one-third of students are not being counted toward the law's requirement that schools show academic improvement.

The law was created to ensure students of all racial backgrounds receive decent education by charting their progress. However, a clause in the federal law allows states to not report scores of students in certain subgroups if their enrollment numbers fall under a certain amount.

These subgroups include the five major ethnic groups as well as English language learners, children with disabilities and economically disadvantaged students, according to Mike Thompson of the state Department of Public Instruction.

This means a student's test score could be counted several times, he added.

"All student test scores are reported," Thompson said. "[And] in order to make a valid judgment on a school, you need to have at least 40 students in the subgroup."

Thompson said that the state DPI had to decide how many students would be enough to make a valid representation of that subgroup. The department then had to justify that number to the federal government for approval.

Annette Talis, spokeswoman for the Wisconsin Association of School Boards, agreed with Thompson that the NCLB law is not a form of institutionalized racism.

"I don't think anybody is trying to discount any students in their data — it's a matter of statistical relevance," Talis said. "The problem is the federal government is the wrong level of government to be getting into this level of measuring student achievement."

Talis added that the federal government does not have the means to look at the performance of individual students accurately, and that this responsibility should have been left to local governing officials, such as school boards.

"We don't want to say that one student stands for all African Americans," Talis said. "When you break it down into these subgroups, that is what you sometimes end up doing."

Still, Secretary of Education Margaret Spellings defended the integrity of the program.

"Are there people out there who find ways to game the system? Of course," Spellings said. "But on the whole … I fully believe in my heart, mind and soul that educators are people of good will."

However, state Rep. Jon Richards, D-Milwaukee, says that NCLB is not fulfilling its promise to lead to better schools for all children and is not accurately measuring schools' performance.

"There are some schools I know that are doing very well, but they are listed as schools in need of improvement from lack of progress from year to year," Richards said, noting the difficulty for already high-ranking schools to improve their standing.

"[NCLB] gives a very distorted picture of what is going on in urban schools in general," Richards said.

Talis agreed with Richards, saying that NCLB is difficult to apply to Wisconsin because there are so many small school districts.

"People in Washington don't really have a grip on how small some of our school districts are," Talis said. "In some schools, one student is 10 percent of the grade."

The AP study also found that roughly two million student test scores are not being counted nationwide.

— The Associated Press contributed to this report.