No Waiver Left Behind



States welcome more flexibility in meeting the challenging requirements of No Child Left Behind.

By Lee Posey

It came as no surprise when President Obama announced in September 2011 that the U.S. Department of Education would grant states waivers from particular provisions in the No Child Left Behind (NCLB) law.

Congress had failed to come up with an agreement on how to revamp the sweeping federal education law signed by President George W. Bush in 2002, and the Obama administration argued that waivers would offer states more flexibility in complying with some of law’s most onerous requirements.

West Virginia, like most states, took advantage of the offer and received a waiver. Last year, lawmakers passed major comprehensive education reform, and having the waiver “is helping West Virginia move in the direction we want to as a state,” says Senator Robert Plymale (D), chair of the Senate Education Committee.

With the addition of Illinois in April (the most recent to receive a waiver), 43 states, the District of Columbia and Puerto Rico have received waivers.

But now a few states risk losing their waivers, as Washington state did at the end of April, and others face the difficult task of making education policy decisions within the uncertain and changing world of waivers.

Flexibility With Requirements

The waivers granted states flexibility in how and when they achieved certain requirements in the law, as well as how they used the federal education funds.

The original waivers granted states more time to help 100 percent of their students achieve proficiency in reading/language arts and mathematics. In exchange for this greater flexibility, states had to agree to:

•   Transition to college- and career-ready standards.

•   Develop an effective way to differentiate the performance level of individual schools.

•   Hold low-performing schools accountable for improvements, yet provide the support they need.

•   Establish teacher and principal evaluations based in part on student achievement.

Especially attracted to the waivers were many school leaders from low-performing schools who were seeking a more reasonable set of student achievement targets and more influence in deciding what intervention strategies would be most effective in their schools.

Like most states, Idaho sought the waiver for the flexibility it offered in assessing student learning, says Idaho Senator John Goedde (R), chair of the Senate Education Committee.

“Idaho will use multiple measures, including academic growth and completion of dual credit courses as well as SAT scores, rather than just the annual yearly progress, which should provide a more accurate measure of Idaho’s student learning.”

The waiver requirements also allowed the U.S. Department of Education to emphasize its education reform goals, especially to require teacher evaluations be based in part on students’ performance on statewide tests.

Extensions Offered

 As the end of the initial phase of waivers approached this year, states that hadn’t yet met the conditions of their waivers were faced with the uncomfortable possibility of losing their waivers and falling back under the challenging requirements contained in the original No Child Left Behind law.

So the U.S. Department of Education offered a one-year waiver extension to the 35 states that received waivers beginning in the 2012-2013 school year if state school officials could explain how they had used the waiver’s added flexibility to improve their students’ achievement and address any other  problems identified in the waiver process. The department continues to process requests for extensions and hopes to reach decisions by early June, if it hasn’t already done so.

What happens when a state fails to receive an extension and loses its waiver? Washington will find out soon, since it became the first to lose its federal waiver. The one thing for sure at this point is that the state will lose control over how it uses almost $40 million in federal Title 1 funding each year.

Nearly every school in Washington will now be labeled as failing to meet the 100 percent proficiency standard required under No Child Left Behind. Although the state wants to continue its accountability plans and focus state interventions on schools identified as a “priority” or “focus,” based on their students’ academic performance, there’s only so much Title 1 money to go around.

Additional Flexibility

A year ago, U.S. Secretary of Education Arne Duncan announced states could have additional flexibility beyond the original waivers in two critical areas:  teacher and leader evaluations, and student assessments.

States that received regular waivers before the summer of 2012 could now delay the use of new teacher and leader evaluation and support systems and continue to make personnel decisions without the use of student data through the 2016–2017 school year. Five states have received this allowance: Kentucky, Mississippi, Nevada, North Carolina and South Carolina.

Second, the department offered states the flexibility to avoid “double-testing” during the transition to the new assessments based on the college- and career-ready standards.

During the past school year, schools could choose to give only one assessment to any individual student—either their current statewide test or the brand-new assessments based on the college- and career-ready standards.

Participating schools are not required to meet annual progress targets based on these new assessments and will retain their current proficiency level designation for another year.

To date, California, Connecticut, Idaho, Illinois, Iowa, Maryland, Massachusetts, Montana, Nevada, Oregon, South Dakota, Utah, Vermont, and Washington  have received approval.

State Struggles

Like Washington, Arizona, Kansas and Oregon are also in danger of losing their waivers as they struggle with meeting or conforming to certain requirements in the waivers.

Washington lawmakers were frustrated that “the U.S. Department of Education was unable to support our preference for student growth,” says Washington Representative Sharon Tomiko Santos (D), chair of the House Education Committee. The Legislature adjourned last spring without having passed a teacher evaluation process that conformed to the waiver’s requirements.

The current state process already “is rigorous and provides a fair and balanced way to measure student growth and support teacher improvement,” says Tomiko Santos.

Washington allows local school districts to use their own student assessments as part of the teacher evaluation process. But that’s not in line with the federal education department’s waiver requirement that teacher evaluations include student growth as a “significant factor” in examining teacher performance, and that students’ academic growth over the course of a school year must be measured through statewide standardized tests.

The federal department chose to stand firm on this mandate. “Washington has not been able to keep all of its commitments,” Secretary Duncan wrote in the email informing the state it was losing its waiver because of its teacher evaluation method.

Washington is not alone. The waiver process also has become  complicated in California. Although it received a waiver from the statewide testing requirement, it’s the only state denied a comprehensive waiver from the original law’s requirements.

Last year, however, eight large California school districts that had formed the CORE (California Office to Reform Education) consortium and applied as one entity received a unique one-year NCLB waiver.

The CORE waiver faced possible nonrenewal if the eight districts didn’t follow through on their school-rating and teacher-evaluation proposals.

Just before the May 2014 deadline to apply for a second year of the waiver, Sacramento’s school district withdrew from the CORE group in protest over its plan to tie teacher evaluations to student test scores. On July 1, the Sacramento school district will return to the provisions of No Child Left Behind; it anticipates costs of about $4 million to help underachieving students demonstrate academic proficiency as required in the law.

This world of changing waivers will continue as long as the reauthorization of No Child Left Behind lingers in Congress. This likely means a long time.

State policymakers, however, aren’t taking a recess from efforts to improve the nation’s schools. They continue to debate and enact major education reforms—new academic standards, new assessments based on those standards, and new teacher evaluation systems—with or without a waiver.

Lee Posey follows federal education policy from NCSL’s Washington, D.C., office.

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