Hundreds of Maine schools could be identified as failing in the next few years under the federal education reform law known as the No Child Left Behind Act, says the state’s newly appointed commissioner of education.

“Every school has the potential to fail” under the new law, said Commissioner Susan Gendron, since many children start school with significant literacy problems, and research shows they are unlikely ever to catch up.

Those students ultimately could affect their school’s performance, said Gendron, a former kindergarten teacher with a background in early childhood education.

Enacted two years ago, the law says schools must test 95 percent of students in reading and math in grades three through eight every year and once in grades 10 through 12 beginning in 2006.

Maine has been basing its criteria solely on the Maine Educational Assessment, a standardized test given in the fourth, eighth and 11th grades. More than 40 schools have been identified already as “needing improvement” under the federal act.

Down the road, yet-to-be-approved local assessments also will be used to identify problem schools, but a passing grade for a whole school may not be enough to keep it from failing. A school can be labeled if certain subgroups of students – including low-income, minority, special education and migrant – don’t meet the standards.

Under the federal law, schools are required to set goals – called “adequate yearly progress” – to ensure that each group is making strides. The first improvement target needs to be met by 2004-05. All students must be able to demonstrate proficiency by 2013-14.

The law says schools that don’t make adequate progress over time must provide tutoring or after-school assistance, allow students to attend other schools within the same district, or take other corrective measures.

While the federal government says No Child Left Behind will make schools more accountable, local education officials are voicing fears about the repercussions of the landmark reform law.

Maine will see “an escalating number of districts” where students aren’t meeting standards because of the federal law’s “unrealistic timeline of perfection,” said Judith Lucarelli, Maine’s former deputy commissioner of education.

The law is especially demanding because it requires not only that students who finish school in 2013-14 be able to meet state standards, but that even those starting school that year be able to succeed in that regard. But, said Lucarelli, “it takes children different amounts of time to learn.”

The law is “designed to make public schools fail,” said Keith Harvie, legislative spokesman for the Maine Education Association, the state’s teachers union.

For example, youngsters who are severely disabled or who can’t read could end up skewing the performance measures for the entire subgroup of students with special needs, he said last week.

They would “pull that average test score way down,” he said. “Any way you look at it, [the federal law has] some difficult if not unrealistic standards.”

National experts are expecting that every state will see a higher number of schools identified as failing each year, said Dale Douglass, director of the Maine School Management Association.

Because of the way schools are required to report progress each year, it’s likely a school may be performing well, but not reach the standard described in the law, he said.

They then would become what officials call “a priority school,” having the greatest need for improvement.

Last July, the federal government announced 19 “priority schools” – schools failing to meet test standards – in Maine using methods developed before the passage of the new federal law.

Then, in January, the state released a new list of 24 schools cited because students did not meet MEA standards between 1998 and 2002. Most of the schools on the first list weren’t included on the most recent one. Another list is expected next fall.

Douglass envisions potential problems. “When you’ve made progress enough to be removed from the list from year one to year two, but something causes you to go back in year three … it will appear there’s an educational slippage, when it may not be accurate,” he said.

Pointing out that the impetus behind No Child Left Behind was frustration with urban schools, he said Congress should “re-examine the law as it applies to rural states that have a simpler demographic picture.”

No Child Left Behind doesn’t account for changing conditions in schools, Gendron said. Since many communities see at least half of their student population move in and out each year, “the students you’re testing and the data you’re gathering differ from year to year,” she said.

“So you may implement a plan to change what’s happening in your schools, but not all students are benefiting because they’re brand-new or have moved in partway through the year.”

Another reason Maine schools could seem to be falling short is that the MEA is more difficult than other states’ tests. “Our standards are already higher,” Gendron said.

Although the state may need to revise the MEAs, the idea is not to lower standards, she said.

For now, Maine is in a holding pattern, waiting to see whether the federal government approves the plan it submitted in January detailing how it plans to comply with the law. So far, accountability plans in 12 other states have been approved.

In its plan, Maine has included what No Child Left Behind calls a “safe harbor provision,” where a school is said to have made adequate yearly progress as long as the percent of students below proficient has been reduced by 10 percent from the previous year, Gendron said.

It is hoped that the provision will help adjust for different groups and their performance, she said. “But I think we’ll find it may not prevent schools from being identified in the long run,” she said