Florida to Seek Waiver From Key ESSA Provisions

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Florida plans to seek a waiver from several fundamental portions of the Every Student Succeeds Act that dictate how schools handle some of the country’s most historically underperforming and disadvantaged students.

But the draft request, which seeks to mostly keep intact a state school accountability system that predates the new federal K-12 law, already has inflamed civil rights advocates, and could prove an early test of how the U.S. Department of Education intends to weigh states’ bids for flexibility in the ESSA plans being submitted for approval.

Florida is asking, among other things, that it not be required to judge schools based on how well English-learners perform on language proficiency exams or how wide achievement gaps are between poor, black, Latino, and other students and their white peers.

In addition, the state education department does not want to give proficiency exams in students’ native language as ESSA requires because, it says, the state constitution declares English as Florida’s official language.

“Florida’s system focuses attention on the students who need the most support regardless of the subgroup to which they belong,” officials said in the draft waiver document posted on the state department’s website earlier this month.

The state plans to submit the waiver request along with its ESSA plan in September.

But in order to receive a waiver from portions of the federal law, the state faces some major hurdles.

Under ESSA, any state seeking a waiver must prove to the federal government that what it’s proposing to do is just as, or more, effective than what the federal law requires.

Florida says that calculating subgroups’ performance would only gum up its accountability system and confuse parents and educators. Its current system, enacted two years ago, provides schools a letter grade based on how well all their students perform, no matter their race, needs, language proficiency, or economic status. The state targets federal and state dollars toward the students performing in the bottom 25 percent academically. That method led to some test-score gains for all students last year, state officials say, and they will continue to report and monitor achievement gaps in the coming years.

Criticism Mounts

But civil rights activists in the Sunshine State are pushing back against the nascent request, protesting and petitioning the state department and board in recent weeks.

“Their reluctance to comply with the letter of the law is amazing,” said Rosa Castro-Feinberg, a civil rights activist, education consultant and former school board member from Miami-Dade County Schools who has mobilized several advocacy groups in recent weeks to fight the waiver. “It’s unconscionable that there would be no accountability applied at the school level for this very primary function, to close achievement gaps ... especially in an immigrant-rich state such as Florida.”

Just a fraction of the state’s large population of minority students today meet basic academic standards. That’s due to a confluence of reasons, Castro-Feinberg said, that include racially segregated schools, ineffective teachers, and diffuse funding.

“The federal role is to encourage states and districts to deal with the diversity that is a reality for our students,” said Cheryl Sattler, a consultant who helps Florida school districts comply with federal law. “I feel like sometimes it’s necessary for a higher government to provide the political cover to make changes that aren’t always comfortable.”

Complex Process

While many states have attempted to write around, ignore, or postpone addressing several of the more politically thorny provisions of the law in the ESSA plans submitted so far, few have actually pursued a waiver.

The process is a lengthy one that could potentially lead to years of litigation between federal and state officials and leave practitioners in the lurch. Kentucky’s department of education, in a more limited approach, said Wednesday it will pursue a waiver to be allowed to give more students an alternative exam than the law allows for.

Florida is also asking for a waiver from being forced to report the grades of schools where fewer than 95 percent of students participate on the state exam and to use some middle school students’ performance on high school exams, rather than their grade-level assessments.

Political Hot Potato?

Florida’s waiver request could provide a political dilemma for U.S. Secretary of Education Betsy DeVos. She has faced a political backlash from Republicans for her feedback on some states’ ESSA accountability plans, and from Democrats for her philosophy regarding the department’s role in upholding minority groups’ civil rights.

If DeVos provides Florida a waiver, she could be accused of not upholding the civil rights legacy of the Elementary and Secondary Education Act, of which ESSA is the latest version, and setting a precedent for other states. If she denies the waiver, she could be accused of trampling on states’ rights.

Waivers themselves also are a touchy issue. President Barack Obama’s administration was regularly accused of using money and waivers from the NCLB law to prod states to implement the Common Core State Standards and other parts of the administration’s education agenda.

ESSA does include a waiver provision, but bans the education secretary from making a waiver contingent on a state adopting a particular policy agenda.

Florida’s department of education said in an email that its current accountability system follows the spirit of the law.

“We established K-12 accountability before No Child Left Behind was enacted in 2001, and, since then, we have continued to raise standards to ensure success in college, career, and life for all students,” said Audrey Walden, a spokeswoman for the department.

But the state also has been involved in some battles over some of the issues raised in the waiver now in preparation.

Florida officials fought the federal government for several months to be allowed to delay including the exam results of recently arrived immigrants in its accountability system. At one point, Republican Gov. Rick Scott threatened to sue the federal government over the issue.

The state board of education is under a 27-year-old consent decree with the League of United Latin American Citizens that addresses ELL students’ “right to equal access to all education programs.”

A commissioner-appointed task force in 2012 submitted to Florida’s state board a list of recommendations on how to improve academic outcomes for ELL students. But the state has been stubborn in implementing several of those recommendations, Castro-Feinberg said.

Florida’s ELL community, the third-largest in the country, was jubilant when ESSA was passed in December 2015.

Two of the recommendations from the 2012 task force—that the state consider ELL students’ performance on language acquisition exams in its accountability system, and that it provide native language assessments to determine whether to move students into mainstream classrooms—were included in ESSA.

So Castro-Feinberg was aghast when she learned the state would ask for a waiver from those two provisions.

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“It’s one thing to quibble with [technical aspects of the law], it’s another thing to ask for a waiver from what the plain language of the law requires,” said Castro-Feinberg, who also serves as the spokeswoman and government relations for Florida’s chapter of LULAC. The state board is expected to vote on the waiver request next month.

The department has posted the waiver for public comment which ends at the end of this month.

“The draft plan we posted for public comment is truly a draft and we will consider some changes, which could include the format of the plan, once we have reviewed all of the responses,” said Meghan Collins, the chief spokeswoman for the state department of education.

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