Broad Changes Ahead as NCLB Waivers Roll Out

By Sean Cavanagh & Alyson Klein — February 10, 2012 11 min read
President Barack Obama is followed by U.S. Secretary of Education Arne Duncan as he arrives in the East Room of the White House on Feb. 9 to speak about flexibility for states in the No Child Left Behind law.
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The waivers being granted to 10 of 11 states that applied for flexibility under the No Child Left Behind Act would allow them to make potentially broad changes in how school performance and the performance of student subgroups are judged under the decade-old law.

Some advocates for disadvantaged students are questioning whether the waivers granted Thursday by the U.S. Department of Education will make it easier for states to ignore lagging student performance among various subgroups, such as racial and ethnic minorities, English-language learners, and students with disabilities.

But in announcing the waiver plans, Obama administration officials argued that the opposite will prove true: An increased number of students in those populations will be counted within states’ testing and accountability systems in the years ahead.

Just one state, New Mexico, was denied a waiver in this first round, though Education Department officials said they were confident the state could secure one with improvements to its application. Three states—Florida, Georgia, and Oklahoma—were given conditional approvals, meaning they will be expected to improve portions of their plans to receive the flexibility they want.

That left seven other states that the department said had their plans approved without conditions: Colorado, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, and Tennessee. U.S. Secretary of Education Arne Duncan vowed Thursday that states would be held to the promises spelled out in their plans.

The waivers allow states to escape some of the central provisions and sanctions associated with the NCLB law, policies that critics have branded onerous and unrealistic—in particular, the requirement that all students be deemed “proficient” in reading and math by the end of the 2013-14 school year. Applications for a second round of waivers are due later this month.

President Barack Obama, in announcing approval of the first waiver plans, said the process would reward states for coming up with innovative improvements to the law, which he said is too inflexible and punitive for schools.

“We’ve said, if you’re willing to set higher, more honest standards than the ones that were set by No Child Left Behind, then we’re going to give you the flexibility to meet those standards,” President Obama said. “We want high standards, and we’ll give you flexibility in return. We combine greater freedom with greater accountability. Because what might work in Minnesota may not work in Kentucky, but every student should have the same opportunity to reach their potential.”

Reauthorization Debate

The Obama administration unveiled its official plan to grant waivers in September, after months of anticipation. The administration has said it was essentially compelled to grant waivers to states because of federal lawmakers’ inability, or unwillingness, to reauthorize the Elementary and Secondary Education Act, the law known in its current incarnation as No Child Left Behind. The stall in the renewal process has left states to cope with a flawed policy, the administration says, and the prospect of increasingly dire consequences for schools that fail to meet its mandates for improving student achievement.

Initial reaction from Capitol Hill was divided along partisan lines. U.S. Rep. George Miller, the ranking Democrat on the House education committee, praised the waiver program and accused Republicans of putting forward reauthorization plans that could not win bipartisan support. But Rep. John Kline, R-Minn., the chairman of the committee, accused the president of overreach. Mr. Kline’s comments on Thursday came the same day he unveiled a pair of ESEA reauthorization bills that would greatly reduce the federal role in education.

Rather than working with Republicans to change the law, President Obama “decided to issue waivers in exchange for states’ adopting policies that he wants them to have,” Rep. Kline said in a Feb. 9 speech at the American Enterprise Institute, a Washington think tank. “He would say, ‘We’ll let you opt out of these requirements if you do things the way we want them done.’ And that’s the waiver policy that we have now.”

The NCLB law was approved by Congress with bipartisan support and signed by President George W. Bush in January 2002. It requires schools to test students annually in reading and mathematics in grades 3-8 and once in high school, and raise their performance over time, with the goal of having all students reach academic proficiency by the 2014 deadline. Schools that do not meet academic targets—including for specific subgroups of students—face increasingly stiff penalties, which potentially include having to provide tutoring and support services and undergo restructuring.

Backers of the law say it establishes a set of clear and demanding expectations for schools and requires them to account for students whose performance has often been overlooked. But the law has drawn scorn from many educators, who say it has fostered a test-obsessed school culture and narrowed the curriculum by forcing schools to focus on reading and math at the expense of such subjects as science, history, art, and electives.

A Department of Education official estimated that at least nine of the 10 states that were approved for waivers were granted the power to create some form of “super-subgroup” or combined subgroup category, separate from individual subgroups of minority, special education, or English-language-learner students, within their accountability systems. Critics of those new super-subgroups suggest they could result in individual categories of students, such as African-Americans or those in special education, being ignored in state accountability systems.

States creating super-subgroups under the waivers still will be held to standards as high as under the NCLB law when it comes to individual subgroup performance, the Education Department official said. The official said those states would still face sanctions under their new accountability systems if they did not hit academic targets for those populations. “The mechanism may change, but subgroup performance remains a strong incentive” for states, the department official said.

Secretary Duncan on Thursday told reporters that the waiver states’ revised accountability systems would cover “many, many more children,” including minority and special education students, than have been included under the existing law.

But some observers, who were still combing through the voluminous waiver documents, were deeply skeptical that states would be held to standards comparable to those they’ve followed under the law as currently written.

“On the whole, [super-subgroups] are pretty scary,” said Amy Wilkins, the vice president for government affairs and communications at the Education Trust, a Washington-based organization that advocates for poor and minority students. “The disadvantage is that it essentially gets us back to the pre-NCLB problem of masking the achievement of one group behind the achievement of other groups. … You could move one subgroup and leave the rest behind and get yourself a get-out-of-jail-free card.”

But Ms. Wilkins sees one advantage to super-subgroups: They would help disadvantaged students and others in special populations get around a statistical quirk of the No Child Left Behind law called an “n” size, or a minimum subgroup size. Under the law, schools with only a small number of students in a particular subgroup don’t have to include them in their accountability systems. The super-subgroups will almost certainly capture more students, Ms. Wilkins said.

Dianne M. Piche, a senior counsel and the director of the education program at the Leadership Conference on Civil and Human Rights, in Washington, voiced similar concerns.

“We certainly hope they struck the right balance, but again, we will need to read the plans carefully,” Ms. Piche said in an e-mail. But “we are very worried that most states seem to be in rapid retreat from the most significant improvement of NCLB over” previous law. That commitment, she said, is to “improve outcomes and to close achievement gaps based on race, national origin, disability, family poverty, and English-proficiency levels.”

And Raul Gonzalez, the director of legislative affairs for the National Council of La Raza, a Washington-based advocacy group for Latinos, questioned whether the super-subgroups would dilute states’ accountability for the performance of English-language learners.

“While the waiver application requires states to identify how they will provide additional supports to English-learners and students with disabilities, we’ll never know if those supports are successful if student-achievement results are masked,” Mr. Gonzalez said in a statement.

“At the heart of this process is that school system administrators are getting an opportunity to simplify their lives by jettisoning NCLB’s [accountability] system, and that parents should trust them to do the right thing for kids,” he added. “It sounds an awful lot like what was in place pre-NCLB, which we know didn’t work for students ... particularly those subgroups of children targeted in current law.”

State Response

States that won waivers pledged to stick to their plans and address any conditions federal officials had attached to them.

Janet Barresi, Oklahoma’s superintendent of schools, said her state’s approved waiver plan is conditioned on the state’s completion of the details of a plan to assign schools A-to-F grades. The state’s application also promised a new teacher-evaluation system and an accountability system that factors in student academic growth, among other strategies.

“I almost hate to use the word ‘waiver’ because it sounds like we are relaxing things, when in fact it will allow us new flexibility to refocus and be proactive,” Ms. Barresi, an elected Republican, told Education Week. “I think this will be a game-changer in Oklahoma.”

Ms. Barresi noted that she supported the No Child Left Behind Act and wants to see Congress reauthorize it. The waivers won’t override the law, she said, but “supplement” it.

Federal officials also attached conditions to Florida’s approved waiver plan, one of which requires the state to improve its implementation of the federal School Improvement Grant program. State Commissioner of Education Gerard Robinson said he was confident the state would resolve the issue.

“We knew that was going to be in the [department’s] letter,” Mr. Robinson said. “We can work through that.”

In a conference call with reporters, Secretary Duncan offered few details about what specific flaws federal officials had found in New Mexico’s waiver application.

The secretary said that New Mexico’s initial application was “incomplete,” adding that while the state had made “night and day” improvements, it still needed more work. He expressed confidence the state’s waiver plan will be approved.

“We think they’re very, very, close,” Mr. Duncan said.

New Mexico’s secretary-designate of education, Hanna Skandera, attributed her state’s denial partly to its relatively slow pace in implementing the common-core academic standards that her state and most of the others have adopted. “That was the big piece,” she said in an interview.

But Ms. Skandera said the state had made recent breakthroughs in that area and other portions of its application, and expects it to be approved soon. The state is implementing an A-to-F grading system for schools and a system that gives them credit for student academic progress. Securing the waiver would give the state greater flexibility in many areas, Ms. Skandera said, including how it uses federal funds.

“The bottom line is, we’re excited, we’re optimistic, and stay tuned,” she said.

Common Standards

To secure waivers of No Child Left Behind requirements, states have to agree to adopt “college- and career-ready” standards, such as the Common Core State Standards approved by 46 states and the District of Columbia; put in place new systems for evaluating teachers and principals; and come up with aggressive plans for improvement of low-performing schools.

In addition, states are expected to establish new testing and accountability systems that set “ambitious but achievable” academic targets and can account for student academic growth over time. Those systems should also include interventions tailored to the needs of specific student populations.

Eleven states met an initial deadline for submitting waiver applications, in November. Twenty-eight other states have submitted applications for a second cutoff date, Feb. 21. Others will be allowed to apply throughout the rest of the year. States that don’t secure waivers will be expected to comply with the existing law, federal officials say.

While Secretary Duncan has the final say on which states are granted waivers and under what circumstances, the Education Department also arranged to have peer reviewers judge states’ applications on how well they met the requirements spelled out by the administration.

Against that backdrop, a number of states have grown increasingly defiant in telling federal officials they would ignore proficiency targets, in the hope of preventing waves of schools from triggering sanctions for poor performance under the law.

At the same time, at least 11 states initially indicated they would not apply for waivers. Officials in some of those states, such as California, Montana, and Pennsylvania, have suggested that the administration’s waiver offer would require them to trade one set of federal mandates for another.

Contributing Writer Nora Fleming, Staff Writer Lesli A. Maxwell, and Assistant Editor Stephen Sawchuk contributed to this article.
A version of this article appeared in the February 22, 2012 edition of Education Week


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