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Are There Growing Inconsistencies in Arne Duncan’s NCLB Waiver Policy?

By Michele McNeil — March 20, 2014 4 min read
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U.S. Secretary of Education Arne Duncan has a history of granting specific district-level waivers, in places such as California, Utah, and Kansas. It stands to reason, then, that a waiver granted to one district ought to be allowable for another district citing the same reasons. After all, it does not make for happy superintendents (or happy congressional delegations) to give flexibility to some folks and not others.

But recent events show growing inconsistencies in the U.S. Department of Education’s waiver policy, and some disconnect between that policy and its practice.

Last week, we told you about how the Education Department rejected a No Child Left Behind Act waiver request from a district in South Carolina that wanted to pilot the use of ACT tests in grades 3-8 and in high school, rather than the regular state exams.

It turns out that just a month earlier, in Kansas, the Education Department quietly approved a similar, though more limited, waiver for the Turner school district.

Although the feds turned down the Turner district’s bid to give ACT exams in grades 3-8 , it approved the use of the ACT—in place of the state exam—in grade 11. No mention there of the rationale used to deny the South Carolina request: that the NCLB law requires the same tests and standards apply for all students in the state. (Read both waiver-decision letters below.)

In South Carolina, Dorchester Two Superintendent Joe Pye is not happy about the result. He said he waited seven months—with encouraging signs from the department—only to be rejected when it was almost too late for the district to change course.

Federal officials said they objected to Dorchester Two’s request for a “permanent” waiver, or permission to give the ACT forever. But that is simply not true, Mr. Pye said. Documents provided to Education Week by the state of South Carolina and the district show that Dorchester Two only asked the federal department for a two-year waiver.

“We didn’t ask for a permanent waiver,” said a perplexed Superintendent Pye, in an interview. “And we would have gladly accepted a one-year waiver. This just stinks.”

What’s more, he said he also would have been happy with a waiver to give the ACT only in 11th grade—the same deal the Turner district in Kansas got.

So what gives? Why did the Education Department give a district in Kansas permission to use the ACT in high school, but not Dorchester Two in South Carolina?

Education Department officials said there is an important difference between the two waivers. They indicated that the Turner district’s waiver in Kansas was more acceptable because it was part of the temporary transition toward an accountability system aligned to the Common Core State Standards. The Dorchester Two waiver request from South Carolina, on the other hand, was made possible by a state law that seemed to encourage high-performing districts to opt out of state tests permanently, the department said.

And there’s another distinction, not mentioned by the Education Department: Kansas is no longer participating in the federally backed common-core assessment consortia. South Carolina still is. Is the Education Department trying to protect its assessment investment there?

South Carolina Superintendent of Education Mick Zais told me in an interview this week that the state is considering ditching Smarter Balanced Assessment Consortium, and was thinking of the Dorchester Two waiver as a possible pilot for using ACT exams as its new statewide assessment. Even with the waiver rejection, the state is still examining its options, and may yet decide to go the ACT route, he said.

This isn’t the first time the Education Department’s rhetoric or policy on waivers hasn’t seemed to match its practice.

At least two other examples come to mind.

First: After preaching about the value of working with states, and establishing a streamlined NCLB waiver process for states, the Education Department decided to grant a first-of-its-kind waiver to several school districts in California that now operate their own accountability system that is separate from the state’s.

Second: After stressing the value of having reportable data even as states transition to new common-core-aligned tests, and publishing guidance implying states should have a mix of state and field tests, the Education Department granted a sweeping testing waiver to California. This waiver allowed California to ditch its state tests entirely for 3 million students in grades 3-8 in favor of giving only common-core field tests. This means there will be no reportable student-performance data for at least a year, and no new accountability designations for two years.

And finally, the Education Department, in its NCLB waiver policy, has drawn a bright red line around teacher evaluations and an aggressive timeline for implementing them. That’s left Illinois behind, and without a waiver, because its teacher-evaluation law didn’t match federal timelines. Now that Washington state’s teacher evaluation system is out of compliance, Duncan should revoke its waiver, according to that rationale. But will he? Or will another special waiver be created for Washington?

The NCLB Act gave sweeping waiver authority to the education secretary, so it is well within Duncan’s power to grant this hodgepodge of flexibility. But creating special, tailor-made waivers for some, but not others, opens up the department to all sorts of questions of favoritism and politics.

Education Department’s partial approval letter for Turner district in Kansas:

Education Department’s rejection letter for Dorchester Two district in South Carolina:

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