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Waivers and ESEA Renewal Get Hard Look From Senators

By Alyson Klein — February 07, 2013 6 min read
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Now that the Obama administration has issued more than 30 waivers to help states get relief from parts of the No Child Left Behind Act, should Congress decide to get moving on the long-overdue reauthorization of the law, or step back for a while and allow waivers to take hold in states, and then learn from them? And which policies put in place by the waivers should lawmakers incorporate into a new version of the law?

Those were the central question facing lawmakers on the Senate Health, Education, Labor, and Pensions Committee at hearing on the waiver plans today.

It’s clear that U.S. Sen. Lamar Alexander of Tennessee, the top Republican on the Senate education committee, seems to think the U.S. Department of Education has overstepped its bounds in the waiver process. He held up a copy of Tennesse’s waiver document—which is about as thick as a dictionary—and said that the waiver process has become a sort of Inside Washington version of the children’s game “Mother May I?” with states begging the department for leeway.

“This simple waiver authority has turned into a conditional waiver with the [Education] Secretary having more authority to make decisions that in my view should be made locally by state and local governments,” said Alexander.

For instance, he said, the administration “pretty well wrote the law” on teacher evaluation, since the waivers call for states to evaluate educators based in part on student outcomes. That’s something Alexander—and plenty of Democrats—do not want to see in reauthorization of the Elementary and Secondary Education Act, the current version of which is the NCLB law.

Alexander acknowledged, however, that Congress had dropped the ball on reauthorizing the law, which is more than five years overdue.

U.S. Secretary of Education Arne Duncan, who testified at the hearing, agreed, and essentially laid the blame for the waivers at lawmakers’ feet, saying he and his staff spent hundreds of hours pushing lawmakers to act, which turned out to be “fruitless.”

“I came up and met with you repeatedly to try to push a strong” reauthorization, Duncan said. Issuing waivers instead was “always, always our Plan B.” He said he stands ready to work with Congress on legislation. But first, lawmakers need to get over the dysfunction that has plagued them on just about every issue, including K-12 policy, according to Duncan.

Sen. Tom Harkin, D-Iowa, head of the committee, was a lot softer on the waivers. He kicked things off by thanking Duncan for “stepping into the breach” when Congress didn’t act. He likes, for example, that the waivers push states to test students in subjects other than reading and math. (Not every state is using other subjects, but some are.)

But he’s got big concerns about so-called “supersubgroups” which allow states to group together students with disabilities, English-language learners, and others. Supersubgroups weren’t part of the NCLB law, which required states to break out the performance of particular groups of students, including English-learners, racial minorities, and students in special education. But a number of states have included supersubgroups in their waiver plans.

Duncan emphasized that super subgroups can actually be helpful for some students, including those in special education, because some of them weren’t counted under a state’s “n” size and were therefore invisible under accountability plans. (N size is essentially the number of students a school has to have in a particular group—such as racial minorities—in order to get counted under a state’s accountability plan. Harkin expressed concerns about this earlier.)

Some senators indicated that they are pretty happy with how their states have fared under the waivers, including Sen. Michael Bennet, D-Colo., whose state dreamed up a new way of tracking individual student progress. And, in a surprise statement, Harkin said he agreed with Duncan’s decision to deny Iowa’s waiver, which he said “just wasn’t good.” (Iowa’s state chief, Jason Glass, disagrees.)

But Sen. Pat Roberts, R-Kan., said his state hadn’t had as good an experience. The waivers he said, have created uncertainty in his state and left Kansas in “regulatory purgatory.”

Witnesses on a second panel were generally divided on what should happen next.

Two state chiefs who testified—Kentucky’s Terry Holliday and New York’s John King—said the waivers aren’t their first choice; they would much rather see a reauthorization sooner rather than later. An honest-to-goodness reauthorization offers predictability for states, they said.

But some good things have come out of the waivers, in their view. For instance, Holliday said the waiver made it easier for his state to transition to the Common Core State Standards, which have been adopted by 46 states and the District of Columbia. Kentucky is arguably the farthest along on implementation of the standards.

Kati Haycock, the president of the Education Trust, which advocates for disadvantaged and minority children, had some really big concerns about how, in her view, the waivers have obscured the performance of most students. By putting focus only on the absolute worst-performing schools, the waivers have essentially let states decide how to handle the other 85 percent she said. That doesn’t always lead to great outcomes for students, she added. Way more information in this great report released today by the Education Trust.

Andrew Smarick of Bellwether Education Partners, a nonprofit group based in Washington, said, basically, that the waivers should be given a chance to take hold before Congress decides to upset the apple cart with a brand new law. He said his experience, until recently, as the second-in-command in the New Jersey Department of Education made him realize that swift changes in federal policy can have unintended consequences for states. That’s a different tack from what most folks in Congress have been saying, as well as many state chiefs who want the predictability they say a real reauthorization will offer, as opposed to temporary waivers.

Another tidbit: Alexander asked Duncan point-blank whether he is considering waivers for districts in states that have decided not to apply for the department’s waivers, but got turned down (for instance, California). Duncan said he’d much rather work with states on the waivers and will make a decision about district waivers down the road. In fact, however, an Education Department official said just last month that the department is considering a special ESEA waiver for eight Golden State districts.

So what’s happens next? In an interview after the hearing, Harkin said it was too early to say. He’s not sure just yet if he wants to have more hearings, or get going on a bill. And he said that while elements of the committee’s 2011 ESEA renewal bill are likely to inform the new version, the panel also will likely take into account concerns it heard about that bill. (He didn’t say this, but many in the disability community, which is close with Harkin, didn’t like that legislation one bit.)

“It’s a new Congress,” he said. “I think we need to make a fresh start on it,” possibly incorporating some of the ideas states have put into the waivers.