Judging Process Seen Crucial in NCLB Waivers

By Michele McNeil — September 30, 2011 7 min read

Although U.S. Secretary of Education Arne Duncan ultimately decides which states get relief from key requirements of the No Child Left Behind Act, a group of outside judges will wield tremendous influence in deciding states’ fates.

With states facing compliance deadlines under the law and Congress moving slowly on reauthorizing the Elementary and Secondary Education Act, whose current version is the NCLB law, the U.S. Department of Education on Sept. 22 released long-expected waiver guidelines. (“Obama Outlines NCLB Flexibility,” Sept. 28, 2011.)

Peer reviewers selected by the department will have to make important, potentially controversial judgment calls on the strength of each waiver applicant’s plan, including whether new teacher-evaluation guidelines go far enough to “inform personnel decisions,” and whether state-designed interventions in low-performing schools are appropriate.

According to a guidebook for peer reviewers put out last week by the department, the judges will have to look past whether a state has adopted standards for college and career readiness and scrutinize whether that state also can prepare teachers, and teachers-in-training, to make those standards the core of classroom lessons.

The makeup of the peer-review panels, yet to be selected by the department, will influence the outcome of the waiver process greatly, policy experts and former Education Department officials say.

“We need good people doing this. We don’t want folks that have a steep learning curve,” said Gene Wilhoit, the executive director of the Council of Chief State School Officers, which was critical of the makeup of the review panels during last year’s high-profile Race to the Top competition for not having enough judges with experience in state education agencies.

Starting the Process

The Education Department has established two deadlines so far for states to apply for waivers: Nov. 14 and mid-February. But officials have also said they will accept applications in subsequent rounds.

Relief on the Way

The Obama administration has outlined the ground rules for waivers to states under the No Child Left Behind Act. In exchange for flexibility, states will have to adopt certain education reform initiatives.

What May Be Waived

The 2013-14 deadline for schools to have 100 percent of their students “proficient” in math and reading.

Sanctions, such as restructuring a school, that kick in when a school fails to make adequate yearly progress on its performance targets.

The requirement that 20 percent of Title I funds be set aside to provide students in certain schools with school choice and tutoring.

What States Must Do

Adopt college- and career-ready standards and tie state tests to them.

Develop a differentiated accountability system that targets 15 percent of the state’s most troubled schools and base that system on revised student-growth goals.

Create statewide guidelines for teacher and principal evaluations based, in part, on student growth and used to make personnel decisions.

Application Deadlines

First-round applications, due Nov. 14, are to be peer-reviewed in December.

Second-round applications, due in mid-February, are to be peer-reviewed in the spring.

SOURCE: U.S. Department of Education

To gain a waiver, states will have to adopt college- and career-ready standards and tie state tests to them, adopt a differentiated accountability system that focuses on 15 percent of the most troubled schools, and craft guidelines for teacher- and principal-evaluation systems that will be based partly on student growth and be used for personnel decisions.

In return, states will no longer have to face the 2014 deadline for bringing all students to proficiency in math and reading, their schools will no longer face NCLB sanctions, and district officials will have more freedom to move Title I money around.

The Education Department has signaled it wants all states to eventually earn a waiver.

“This is not a competition where some states win and others are left behind,” Michael Yudin, the acting assistant secretary for elementary and secondary education, said Sept. 26 in a training webinar for states. “There is not one single timeline for states, or one single pathway to approval. We want to get all states to the finish line.”

In reality, only five to 10 states will be ready to apply by the earliest deadline, and 20 or so by February, Mr. Wilhoit, of the state chiefs’ organization, said. And a few may not apply at all, he said. Some may wait for Congress to reauthorize the law, some may think Mr. Duncan is overstepping his authority in tying conditions to the waivers, and others won’t be able to meet the conditions, Mr. Wilhoit said.

In judging the competition, the department is directing the peer reviewers to look at a state’s overall waiver package to determine whether it’s “high-quality” and “comprehensive and coherent.” Judges also will consider whether the plan will increase the quality of instruction and improve student achievement.

In the area of teaching, the judges will examine whether the state “meaningfully” engaged and solicited input from teachers and their representatives. More importantly, the judges will be told to ask: Will implementation be successful because of the input and “commitment” of teachers and their representatives?

On a more detailed level, peer reviewers will focus on the three main commitments states have to make to get more freedom under the No Child Left Behind law.

Ambitious but Achievable

On adopting college- and career-ready standards, judges will ask: Is there a plan to provide professional development to teachers and principals? Is the state planning to increase access to college-level courses for students? Is the state going to work with colleges of education to better prepare teachers for the new standards?

On creating a differentiated accountability system, judges will scrutinize such factors as whether the state’s new proficiency targets are ambitious but achievable, and whether rewards proposed for successful schools would be meaningful and worthwhile enough to make a difference.

And when the judges evaluate states’ guidelines to improve teacher and principal effectiveness, they will need to determine whether the evaluations will be frequent enough. They also will look at whether student growth is a big enough part of the new evaluation system to differentiate among teachers who have made “significantly different contributions” to student growth or closing achievement gaps.

Finding Top Candidates

Given the wide range of topics covered in the waiver plan, Education Department officials say they are looking for peer reviewers who are experts in at least one of these areas: standards and assessments, accountability, teacher and principal effectiveness, and English-language learners and students with disabilities.

“I do think who the peer reviewers are matters. The kind of guidance they’re given is also important,” said Kerri Briggs, a top official with the department under former Secretary of Education Margaret Spellings. Ms. Briggs, who is now the director of education reform at the Dallas-based George W. Bush Institute, helped run the department’s growth-model pilot program under the NCLB law, which relied heavily on peer reviewers to make the final decisions.

The peer reviewers in that growth-model pilot, first unveiled in 2005, were a who’s who in the education policy world, including: Eric A. Hanushek, a senior fellow at the Hoover Institution; Margaret E. Goertz, a professor of education at the University of Pennsylvania; and Kati Haycock, the executive director of the Education Trust.

In previous high-stakes competitions under Secretary Duncan, however, some have criticized the department as being so strict with its conflict-of-interest policy that those most knowledgeable about various education improvement ideas were eliminated from a potential pool. In the competition for $4 billion in Race to the Top grants last year, the judges were criticized for being inconsistent between states and for exhibiting wild swings in the scoring of the same state’s application.

For last year’s Investing in Innovation grant competition, also judged by outside peer reviewers, a report by Bellwether Education Partners raised concerns that the conflict-of-interest policy resulted in a pool of judges made up of “district data officers and retired professors” who favored “more incremental innovations.”

Balancing Act

Such strict policies, though, are meant to avoid problems such as those uncovered in the Reading First grant program, in which the department was criticized in 2006 and 2007 under Ms. Spellings for selecting review panels with judges who had close ties to specific reading programs.

“It’s a question of balance,” said Christopher T. Cross, an education policy consultant and a former assistant secretary of education under President George H.W. Bush. The quality of the people chosen as peer reviewers, Mr. Cross said, “is the core of the challenge. It’s like getting the right teacher in the right classroom.”

That’s not to minimize the department’s responsibility in making the final decisions on waivers, Mr. Cross added. Department officials and Mr. Duncan can take the peer reviewers’ advice and then weigh that against their own decisionmaking processes.

“This gives them the flexibility to give contextual value to the states’ applications,” Mr. Cross said.

The department has said that applications will be judged both by outside peer reviewers and department officials, with Mr. Duncan making the final call. States will have a chance to clarify their plans and answer questions that are raised during the review process. The secretary has promised that the judging will be a “transparent” process, but it’s unclear just what he means by that.

“The key is maximum transparency, to see all of the materials the reviewers are using, to make state applications available immediately,” said Michael J. Petrilli, the executive vice president of the Thomas B. Fordham Institute, in Washington, and a former Education Department official in the George W. Bush administration. “This should be a public discussion about whether or not these plans meet the requirements.”

A version of this article appeared in the October 05, 2011 edition of Education Week as Waiver Process Places Judges in Pivotal Role


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