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Obama Administration Sets Rules for NCLB Waivers

By Alyson Klein — September 22, 2011 6 min read
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The Obama administration on Thursday afternoon said it will waive the cornerstone requirements of the No Child Left Behind Act, including the 2014 deadline that all students be proficient in math and language arts, and will give states the freedom to set their own student-achievement goals, and design their own interventions for failing schools.

In exchange for this flexibility, the administration will require states to adopt college- and career-ready standards, focus on 15 percent of their most-troubled schools, and create guidelines for teacher evaluations based in part on student performance.

“The purpose is not to give a ... reprieve from accountability. But rather to unleash innovation,” a senior administration official said in a media briefing on the long-awaited NCLB waiver guidelines. “We remain absolutely committed to accountability. We’re not interested in giving flexibility for business as usual.”

States that are most ready to apply for the waivers can file by mid-November, with the first round of waivers to be issued early next year. A second round of waiver requests will be accepted in January. That means states could, also for 2011-12, reset the bar for what is considered acceptable growth on test scores. Schools and districts may not feel the effects of the regulatory relief, however, until the 2012-13 school year, when such provisions of the law as the need to set aside funds for free tutoring and school choice will be waived.

The waiver package will—just as in the administration’s blueprint for renewal of the Elementary and Secondary Education Act—require states to implement aggressive interventions in the lowest 5 percent of schools. This won’t be a big change for states because they’re already operating under the School Improvement Grant program, in which the U.S. Department of Education has prescribed four models for intervention.

States will also be required to identify another 10 percent of schools that struggle with particularly low graduation rates, low performance for specific subgroups of students (such as those with disabilities), or high achievement gaps.

But under the waiver plan, a sizable portion of schools that may not be performing well—but are not bad enough to fit in that bottom 15 percent—could be left to flounder, some fear.

“It is a reasonable federal framework focused on the right thing. That said, it gives the states a lot of running room that they’ve been clamoring for. The ball’s in their court,” Amy Wilkins, the vice president for government affairs and communications of the Education Trust, a Washington organization that advocates on behalf of at-risk students. “Will the states step up and come up with thoughtful supports and interventions for schools are not at the very bottom?”

Currently, as schools fail to make adequate yearly progress, or AYP, the key yardstick under the law, they face an escalating set of sanctions, which ranges from requiring schools to provide tutoring and school choice to restructuring a school. The waiver package would free up about $1 billion in Title I money that schools have been required to hold back to provide tutoring and choice.

In some ways, the waiver plan is less prescriptive than the administration’s ESEA blueprint, or its Race to the Top education improvement initiative, Race to the Top, in particular, encouraged states to expand charter schools, adopt common tests, and link student data to teacher evaluations, including decisions on pay and tenure.

The language in the waiver plan on educator effectiveness appears essentially the same as the blueprint. States would have to come up with at least three different categories in their evaluation systems. Student growth would have to be a significant factor in judging teacher effectiveness. Districts would have to ensure those evaluations provide “clear feedback” to teachers and inform personnel decisions,

It’s unclear what those personnel decisions would entail, or how forceful those guidelines would be, although a senior administration official said that for a district to participate in the NCLB waivers, officials would have to “do their part” to live up to the state’s guidelines.

The waiver plan also appears to back off on a specific deadline for bringing all students to proficiency, a key facet of the current law. The blueprint would also have called for states to set a goal of having all students be proficient on state tests by 2020, as opposed to the 2013-14 school year in current law. But the waiver plan doesn’t set a particular end date. Instead, states would still disaggregate data and set performance targets for every school and every student subgroup, and then set “ambitious but achieveable goals”. They could set goals, for instance, to cut the achievement gap in half in six years.

The waiver plan also offers no incentive for states to stick with the department’s $360 million effort to support common tests. But, being a member of one of two consortia of states working on common tests will certainly make the waiver process easier. States will generally have to adopt a next generation of tests that meet certain criteria to qualify for the waiver.

Reaction from Capitol Hill was divided along partisan lines:

Sen. Lamar Alexander, R-Tenn.—who had called Secretary Duncan President Obama’s best cabinet pick—gave a speech on the Senate floor Thursday urging the department not to grant conditional waivers, but to instead allow states to submit their best plans. The department would then decide if those plans move the needle on student achievement.

Alexander said the department “has states over a barrel” and should refrain from acting “like a national school board. ... We shouldn’t create a situation where every governor has to come to Washington to get a waiver from standards that don’t work anymore. That’s [Congress’] job.”

Alexander has introduced legislation that would clarify the secretary’s waiver authority to reflect that the secretary does not have the right to put forth conditional waivers.

Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, has also called into question the secretary’s authority to issue waivers. He called the plan “a political move that could have a damaging impact on congressional efforts” to renew the law.

“While I appreciate some of the policies outlined in the secretary’s waivers plan, I simply cannot support a process that grants the secretary of education sweeping authority to handpick winners and losers,” Rep. Kline said. “This sets a dangerous precedent, and every single American should be extremely wary.”

But Rep. George Miller, D-Calif., the chairman of the House Education and Labor Committee, said that while he would have preferred a comprehensive ESEA reauthorization to waivers, he supports the administration’s decision to go ahead with the plan.

The NCLB law has become outdated, he said.

“It’s become clear that many states and districts are heading off in different directions,” Mr. Miller said. “They are essentially outrunning the ability of NCLB to provide them a path forward. ... Waivers [are a way] to make sure that we continue the tenets of NCLB to provide high standards, provide accountability, make sure we meet the civil rights demands of the law.”

Sen. Tom Harkin, D-Iowa, the chairman of the Senate, Health, Education, Labor, and Pensions Committee, said he is continuing to work with the committee’s top Republican, Sen. Mike Enzi of Wyoming, on a bipartisan reauthorization bill. He’d much prefer a full-fledged renewal of the law to waivers, he said.

But he added, “Legislating is very difficult in this Congress, as we’ve seen time and time again, and local schools are crying out for relief from the most onerous provisions of No Child Left Behind. I certainly understand President Obama’s decision to proceed with a waiver package to provide some interim relief while Congress finishes its work, and am pleased that he is requiring states to show real commitment to reform in order to receive a waiver.