Published Online: June 12, 2011

As NCLB Renewal Stalls, Duncan Vows Flexibility

U.S. Education Secretary Arne Duncan visits with students during a visit to Dayton's Bluff Achievement Plus Elementary School on May 31 in Minneapolis.
—Jim Mone/AP

As the clock ticks toward President Barack Obama’s back-to-school deadline for rewriting the No Child Left Behind Act, U.S. Secretary of Education Arne Duncan is preparing to grant states relief from key provisions of the federal school accountability law in exchange for what he calls “commitments to key reforms.”

The move comes as pressure mounts for Mr. Duncan to give more flexibility to states and districts nervously eyeing the law’s 2014 deadline for ensuring all students are “proficient” in reading and math. Even though the secretary said late last week he’s optimistic that Congress will by this fall reauthorize the Elementary and Secondary Education Act, of which NCLB is the current version, he said he has a “moral obligation” to prepare a fallback plan.

“The worst-case scenario is that Congress does nothing, and we do nothing,” Mr. Duncan said in a June 10 phone call with reporters.

The secretary gave very few details on what relief from NCLB would look like, or what he would ask states to do in exchange. The Department of Education’s options include issuing waivers of provisions in the law, reregulating parts of it, or creating pilot programs such as the one initiated by Mr. Duncan’s predecessor that allowed states to create growth models to measure student achievement for accountability purposes.

For example, Mr. Duncan said he’d like to give states the ability to focus on student gains rather than absolute test scores, as current growth models do. And he’d like to grant more flexibility in how Title I money for disadvantaged students is spent. Though he didn’t offer specifics, that could mean waiving the requirement that schools in need of improvement under the law must set aside a specific amount of money to provide tutoring or school choice.

Any new flexibility would come with strings attached, as states would be asked “for courage and for reform,” Mr. Duncan said, without providing details. But in last year’s $4 billion Race to the Top competition, Mr. Duncan signaled some of his key priorities: high, common academic standards; teacher evaluations tied to student test scores; charter schools; and teacher and principal personnel changes at the lowest-performing schools.

Justin Hamilton, a spokesman for Mr. Duncan, said that unlike the Race to the Top, which allowed states to devise their own education improvement plans, the department would present states with a basket of strategies they would have to adopt in exchange for relief. And that relief primarily would be in the form of waivers, Mr. Hamilton said.

Shift in Tone

The June 10 announcement marked a shift in tone for Mr. Duncan, who had previously refused to even discuss the option of waiving parts of the current law and instead focused entirely on his push to reauthorize the legislation.

“We’re not walking away from accountability,” said Carmel Martin, the department’s assistant secretary for planning, evaluation, and policy development. “We want to have a framework that, if we do give flexibility, that we’re not leaving nothing in its place.”

See Also
From our Politics K-12 Blog: Duncan Claims Authority to Tie NCLB Waivers to 'Reforms', June 13, 2011.

But Sen. Tom Harkin, D-Iowa, who chairs the Senate Committee on Health, Education, Labor, and Pensions, called Mr. Duncan’s revised strategy “premature.”

“The best way to fix the problems in existing law is to pass a better one,” Sen. Harkin said in a statement after the announcement. “We are making good progress toward introducing a bill. ... Given the bipartisan commitment in Congress to fixing [NCLB], it seems premature at this point to take steps outside the legislative process that would address NCLB’s problems in a temporary and piecemeal way.”

Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, is an advocate of providing more flexibility to states, but is worried about what Mr. Duncan’s plans are, spokeswoman Jennifer Allen said.

“Chairman Kline remains concerned about any initiative that would allow the secretary to pick winners and losers in the nation’s education system,” she said.

President Obama has called on Congress to reauthorize the ESEA by the start of the 2011-12 school year. Secretary Duncan has called the NCLB version of the law broken, inflexible, and one that sets the bar too low for states, schools, and students. Congress, however, has continued to stall on a major overhaul of the law, and with the 2012 presidential and congressional elections looming, reauthorization is likely far off.

The 9-year-old law, which was the cornerstone of President George W. Bush’s education agenda, requires states to test all students annually in reading and math in grades 3-8 and once during high school. By the end of the 2013-14 school year, all students are supposed to be proficient in reading and math.

Tied to that deadline is an escalating set of sanctions for schools and districts that fail to make adequate yearly progress, or AYP. As the deadline approaches, proficiency targets get higher, and more schools and districts face sanctions, which include having to provide tutoring to students or, in the worst case, to restructure.

In the 2009-10 school year, 38 percent of schools failed to make AYP, according to a recent reportRequires Adobe Acrobat Reader by the Washington-based Center on Education Policy. For this school year, that figure could rise to 82 percent, Mr. Duncan has warned. (Many education policy experts dispute that the failing rate will go that high.)

The Obama administration’s blueprint for a new ESEA, unveiled last year, calls for states to get students ready for college or a career, as distinguished from just bringing them to proficiency on tests. It also seeks to tie teacher evaluation in part to student test scores and to give states more control over how to help schools improve student performance, while adhering to a strict set of strategies for schools that are struggling most.

The administration has said that, under the blueprint, there would be consequences—but also rewards—for schools and districts. However, the 2014 deadline would essentially go away.

Waivers vs. Relief

If Secretary Duncan uses his own authority to make changes to the law, the distinction between whether the relief is granted via waivers, or through changing regulations, is an important one.

The law gives the education secretary broad waiver authority, aside from areas involving civil rights and funding, to make targeted changes for individual states, usually on a temporary basis. Retooling the regulations, however, would be more time-consuming for the department, would apply to all states, and would be considered more permanent.

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Last month, two national organizations representing school boards and administrators called on Mr. Duncan to freeze the penalties under NCLB so no new schools are deemed in need of improvement. And they urged the department to do so through regulations, not waivers.

“The U.S. Department of Education must provide clear policy decisions, not case-by-case waivers,” said Mary Broderick, the president of the National School Boards Association, based in Alexandria, Va.

The Washington-based Education Trust, which advocates on behalf of poor and minority children, disagreed, saying after Mr. Duncan’s announcement that any relief must motivate states to make progress in boosting the achievement of disadvantaged students.

“While we believe targeted waivers in exchange for real movement on those issues is a good thing, regulatory relief would fit squarely in the ‘cop-out’ category,” said Education Trust President Kati Haycock.

The 3.2 million-member National Education Association welcomed Mr. Duncan’s plans, but is mindful that the details have yet to be hammered out. The NEA does not want to see the department waive requirements that districts provide tutoring under NCLB, or waive requirements that districts disaggregate data that illuminates student achievement among subgroups, such as special education students, said NEA president Dennis Van Roekel.

But the nation’s largest teachers’ union does want to see flexibility given for the “arbitrary” 2014 deadline, for hard-to-reach proficiency targets for special education and English-language learners, and for rural districts that may struggle to staff their classrooms with “highly qualified” teachers, as defined by NCLB, Mr. Van Roekel added.

Increased Pressure

As Congress moves slowly on reauthorizing the ESEA, education groups have been turning up the heat on Mr. Duncan to offer relief from some of the law’s mandates.

In addition to the request from the NSBA and the American Association of School Administrators, the Associated School Boards of South Dakota passed a resolution last week urging the same, according to local media reports.

And, earlier this year, Kansas and Arkansas asked the Education Department for formal waivers of the 2014 deadline. Those requests were denied last month as Mr. Duncan sought to pressure Congress to instead rewrite the law.

Mr. Duncan has already shown a willingness to let states and districts bypass key components of the law.

During his first year in office, in 2009, he granted 315 waivers under NCLB—many linked to the education aid Congress provided as part of the economic-stimulus package enacted that year. That marked a ninefold increase in the number issued under his predecessor, Margaret Spellings, the year before, according to annual reports made to Congress.

Information for 2010 is not yet available. But waivers have continued—including some that strike at the heart of the requirement that students, schools, and districts be measured against the same state tests.

In Kansas, for example, a school district just this month got a first-of-its-kind waiver to use its own standards and tests, opting out of state exams for its oldest students. In Utah, the state in March won approval to let 12 districts use computer-adaptive tests for accountability purposes—a request rejected in 2008 by Ms. Spellings.

With a new round of waivers likely to be available by the fall if Congress doesn’t act, the federal Education Department could take a few different approaches—to stop identifying failing schools, to stop intervening in them, or some combination of the two.

For example, one way of granting relief to states would be to allow them to freeze their annual proficiency targets so that they do not have to make progress toward that 100 percent goal.

Another way of granting relief would be to keep those escalating targets in place and keep identifying those schools that are in need of improvement, but weaken or eliminate some of the penalties.

However, Mr. Duncan seems particularly bothered by the labels that NCLB places on schools, which are termed “in need of improvement” if they “fail” to make AYP.

“This law has created a thousand ways for schools to fail and very few ways to help them succeed,” he said in March. “We should get out of the business of labeling schools as failures and create a new law that is fair and flexible, and focused on the schools and students most at risk.”

Vol. 30, Issue 35

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