(AP) -- Laquanya Agnew and Victoria Duncan share a desk, a love of reading and a passion for learning. But because of a loophole in the No Child Left Behind Act, one second-grader's score in Tennessee counts more than the other's.
That is because Laquanya is black, and Victoria is white.
An Associated Press computer analysis has found Laquanya is among nearly 2 million children whose scores aren't counted when it comes to meeting the law's requirement that schools track how students of different races perform on standardized tests.
The AP found that states are helping public schools escape potential penalties by skirting that requirement. And minorities -- who historically haven't fared as well as whites in testing -- make up the vast majority of students whose scores are excluded.
The Education Department said that while it is pleased that nearly 25 million students nationwide are now being tested regularly under the law, it is concerned that the AP found so many students aren't being counted by schools in the required racial categories.
"Is it too many? You bet," Education Secretary Margaret Spellings said in an interview. "Are there things we need to do to look at that, batten down the hatches, make sure those kids are part of the system? You bet."
The plight of the two second-graders shows how a loophole in the law is allowing schools to count fewer minorities in required racial categories.
There are about 220 students at West View Elementary School in Knoxville, Tenn., where President Bush marked the second anniversary of the law's enactment in 2004. Tennessee schools have federal permission to exclude students' scores in required racial categories if there are fewer than 45 students in a group.
There are more than 45 white students. Victoria counts.
There are fewer than 45 black students. Laquanya does not.
One of the consequences is that educators are creating a false picture of academic progress.
"We're forcing districts and states to play games because the system is so broken, and that's not going to help at all," said Kathy Escamilla, a University of Colorado education professor. "Those are little games to prevent showing what's going on."
Under the law signed by Bush in 2002, all public school students must be proficient in reading and math by 2014, although only children above second grade are required to be tested.
Schools receiving federal poverty aid also must demonstrate annually that students in all racial categories are progressing or risk penalties that include extending the school year, changing curriculum or firing administrators and teachers.
The law requires public schools to test more than 25 million students periodically in reading and math. No scores can be excluded from a school's overall measure.
But the schools also must report scores by categories, such as race, poverty, migrant status, English proficiency and special education. Failure in any category means the whole school fails.
States are helping schools get around that second requirement by using a loophole in the law that allows them to ignore scores of racial groups that are too small to be statistically significant.
Suppose, for example, that a school has 2,000 white students and nine Hispanics. In nearly every state, the Hispanic scores wouldn't be counted because there aren't enough to provide meaningful information and because officials want to protect students' privacy.
State educators decide when a group is too small to count. And they've been asking the government for exemptions to exclude larger numbers of students in racial categories. Nearly two dozen states have successfully petitioned the government for such changes in the past two years. As a result, schools can now ignore racial breakdowns even when they have 30, 40 or even 50 students of a given race in the testing population.
Students must be tested annually in grades 3 through 8 and at least once in high school, usually in 10th grade. This is the first school year that students in all those grades must be tested, though schools have been reporting scores by race for the tests they have been administering since the law was approved.
To calculate a nationwide estimate, the AP analyzed the 2003-04 enrollment figures the government collected -- the latest on record -- and applied the current racial category exemptions the states use.
Overall, the AP found that about 1.9 million students -- or about 1 in every 14 test scores -- aren't being counted under the law's racial categories. Minorities are seven times as likely to have their scores excluded as whites, the analysis showed.
Less than 2 percent of white children's scores aren't being counted as a separate category. In contrast, Hispanics and blacks have roughly 10 percent of their scores excluded. More than one-third of Asian scores and nearly half of American Indian scores aren't broken out, AP found.
Bush's home state of Texas -- once cited as a model for the federal law -- excludes scores for two entire groups. No test scores from Texas' 65,000 Asian students or from several thousand American Indian students are broken out by race. The same is true in Arkansas.
Students whose tests aren't being counted in required categories also include Hispanics in California who don't speak English well, blacks in the Chicago suburbs, American Indians in the Northwest and special education students in Virginia.
State educators defend the exemptions, saying minority students' performance is still being included in their schools' overall statistics even when they aren't being counted in racial categories. Excluded minority students' scores may be counted at the district or state level.
Spellings said she believes educators are making a good-faith effort. "Are there people out there who will find ways to game the system?" she asked. "Of course. But on the whole ... I fully believe in my heart, mind and soul that educators are people of good will who care about kids and want them to find opportunity in schools."
Bush has hailed the separate accounting of minority students as a vital feature of the law. "It's really essential we do that. It's really important," Bush said in a May 2004 speech. "If you don't do that, you're likely to leave people behind. And that's not right."
Nonetheless, Bush's Education Department continues to give widely varying exemptions to states:
-- Oklahoma lets schools exclude the test scores from any racial category with 52 or fewer members in the testing population, one of the largest across-the-board exemptions. That means 1 in 5 children in the state don't have scores broken out by race.
-- Maryland, which tests about 150,000 students more than Oklahoma, has an exempt group size of just five. That means fewer than 1 in 100 don't have scores counted.
-- Washington state has made 18 changes to its testing plan, according to a February report by the Harvard Civil Rights Project. Vermont has made none. On average, states have made eight changes at either the state or federal level to their plans in the past five years, usually changing the size or accountability of subgroups whose scores were supposed to be counted.
Toia Jones, a black teacher whose daughters attend school in a mostly white Chicago suburb, said the loophole is enabling states and schools to avoid taking concrete measures to eliminate an "achievement gap" between white and minority students.
"With this loophole, it's almost like giving someone a trick bag to get out of a hole," she said. "Now people, instead of figuring out how do we really solve it, some districts, in order to save face or in order to not be faced with the sanctions, they're doing what they can to manipulate the data."
Some students feel left behind, too.
"It's terrible," said Michael Oshinaya, a senior at Eleanor Roosevelt High School in New York City who was among a group of black students whose scores weren't broken out as a racial category. "We're part of America. We make up America, too. We should be counted as part of America."
Spellings' department is caught between two forces. Schools and states are eager to avoid the stigma of failure under the law, especially as the 2014 deadline draws closer. But Congress has shown little political will to modify the law to address their concerns. That leaves the racial category exemptions as a stopgap solution.
"She's inherited a disaster," said David Shreve, an education policy analyst for the National Conference of State Legislatures. "The 'Let's Make a Deal' policy is to save the law from fundamental changes, with Margaret Spellings as Monty Hall."
The solution may be to set a single federal standard for when minority students' scores don't have to be counted separately, said Ross Wiener, policy director for the Washington-based Education Trust.
While the exemptions were created for good reasons, there's little doubt now that group sizes have become political, said Wiener, whose group supports the law.
"They're asking the question, not how do we generate statistically reliable results, but how do we generate politically palatable results," he said.
