Published Online: August 29, 2005

Virginia Gets First-Ever Waiver to Reverse Order of NCLB Sanctions

Four Virginia districts can provide students in low-performing schools with free tutoring before offering them the choice of switching to a higher-performing public school, under the first waiver granted by the federal government under the No Child Left Behind Act.

The “flexibility agreement” was outlined in an Aug. 25 letter from U.S. Secretary of Education Margaret Spellings to Thomas J. Jackson Jr., the president of the Virginia Board of Education. While the secretary has granted a number of states increased regulatory flexibility under the law, it is the first time that either Ms. Spellings or her predecessor, Rod Paige, has invoked section 9401 of the law, which permits the secretary to grant waivers of elements of the law itself.

The flexibility—long sought by a number of states—in essence reverses the order of the sanctions spelled out in the federal law, a reauthorization of the Elementary and Secondary Education Act.

The law requires all schools to meet annual targets for student performance in order to make “adequate yearly progress.” Schools receiving federal Title I money for disadvantaged students that miss those targets for two years in a row are identified for improvement and must offer their students the chance to transfer to a higher-performing public school. Title I schools that remain in school improvement a second year also must offer eligible students free tutoring, known under the law as “supplemental educational services.”

Under the pilot program, four school districts in Virginia—in Alexandria, Newport News, Henry County, and Stafford County—will be allowed to offer eligible students only tutoring during the first year that a Title I school is identified for improvement. Title I schools that are identified for a second year would have to offer both choice and supplemental services.

“It’s our feeling that if you allow schools to reverse the order of these sanctions, you’ll see students benefit sooner rather than later,” said Charles Pyle, a spokesman for the Virginia department of education. “Children who would not seek the public school choice option may well be interested in seeking supplemental educational services,” he said.

More Pilots Possible

While Virginia is the only state to receive such a waiver thus far, the U.S. Department of Education plans to begin several pilot programs in a select number of districts across the country. The programs will test the effectiveness of switching choice and supplemental services on student achievement and on how students use those options, according to department officials.

Many educators have suggested switching the order of the sanctions required under the federal law when the act comes up for reauthorization in 2007.

In her letter to Mr. Jackson, Ms. Spellings noted that while the provision of free tutoring is a “key element” of school improvement efforts, not enough eligible students are receiving such services. According to several studies, only 10 percent to 20 percent of eligible students across the country took advantage of supplemental services during the 2003-04 school year.

Last school year, 50,637 Virginia students were eligible to transfer schools, but only 1,181 did so. Nearly 12,000 of those students also were eligible for free tutoring, but only 2,111 of them received such services, according to state officials.

The pilot programs are designed to increase the number of students participating in tutoring, as well as the quality of services provided, Ms. Spellings said. “I hope to gain valuable information about SES from these pilot programs,” she wrote in the letter to Mr. Jackson, “information that can be shared with other states and districts to help them improve the quality of these services.”

The flexibility agreement applies to Title I schools in the four pilot districts for the 2005-06 school year. As a condition of the waiver, Virginia must provide the federal government with information on the academic achievement of students receiving supplemental services; ensure that parents have access to supplemental-services providers; and increase the combined number of students taking advantage of the choice and tutoring options under the federal law.

While Virginia originally requested such flexibility for all its Title I schools, “we’re pleased we’ve been approved for this pilot program, and we’ll work with the four school divisions to carry this pilot forward,” Mr. Pyle said.

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