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Obama Gives Go-Ahead for NCLB Waivers to States

By Michele McNeil — August 08, 2011 5 min read
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With efforts to rewrite the No Child Left Behind Act languishing in Congress, President Barack Obama has directed the U.S. Department of Education to grant waivers to states that agree to adopt a prescribed set of education reforms.

Just what those reforms will be—and what freedoms states will gain in return—remain unclear. Those details will be made public in September, Obama administration officials said in a call to reporters.

“We want to deliver a very important message: Relief is on the way,” said Melody Barnes, the director of the White House Domestic Policy Council. “Low expectations, uneven standards and shifting goals ... those days are numbered.”

This marks an incremental step in the Obama administration’s plan to offer flexibility to states by using its waiver authority, granted under the Elementary and Secondary Education Act (of which NCLB is the current version). In June, U.S. Secretary of Education Arne Duncan announced he was prepared to grant waivers if Congress did not act by the time school starts this fall. Now, he’s stating the obvious: Congress (which is currently in recess) will not reauthorize ESEA by this deadline, and so he is definitely going to grant waivers.

Applications to be Peer Reviewed

A couple of new, important details emerged from the conference call done in advance of an announcement expected today from the White House. For one, the waiver applications from states will be peer-reviewed by people outside the department. Duncan described the process as a “public” one with “lots of give and take.”

“No states are competing against each other,” Duncan said.

After the details are announced in September, states will have a couple of months to put their applications together, and the waivers will be given out this coming 2011-12 school year. This means states could, also this school year, reset the bar for what makes for 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 things like tutoring and school choice might be waived.

Regardless of what the waiver plan looks like, there may be a legal challenge waiting for Duncan. Though critics readily admit he has the authority to grant waivers from conditions set by the law, they have questioned whether he has the ability to do so in exchange for his own reform demands.

In fact, Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, said in a statement he will be paying close attention to the details of the waiver package to make sure Duncan is not overstepping. Kline, who has already raised red flags about the waiver proposal, also said: “I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine the committee’s efforts to reauthorize the Elementary and Secondary Education Act.”

But Duncan, in the conference call, said that to do nothing would be to exhibit an unacceptable “tone deafness” to the pleas of states and districts. Nor, he said, is this waiver package going to undermine any action Congress may take.

Duncan Gains Democratic Support

While Kline remains in the anti-waiver camp, Duncan & Co. did get key Democratic education leaders to support this step. U.S. Rep. George Miller of California, the senior Democrat on the Education and the Workforce Committee, said in a statement: “I understand why Secretary Duncan and President Obama feel they need to take action—the timing, coupled with recent disappointing policy actions by Republicans, make it very difficult to see how we can get a bipartisan ESEA this Congress.” Previously, Miller was not a fan of the waiver plan.

Sen. Tom Harkin, the Iowa Democrat who is chairman of the Senate Health, Education, Labor and Pensions Committee, also had a change of heart. In June, he called the step premature, but now he says he understands where Duncan is coming from. “It is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything,” Harkin said in a statement, adding that he’s hopeful a reauthorization can be accomplished soon.

To try to goad Congress into acting, Duncan earlier this year announced that an estimated 82 percent of schools this year would fail to make adequate yearly progress, or AYP, the key accountability yardstick under the law. They would be considered “failing” schools even though many may not deserve that label, he argued.

State AYP results from the 2010-11 school year are trickling in, and even though most states aren’t coming close to that 82 percent mark, the numbers still aren’t good. Schools that fail to make AYP face an escalating set of sanctions, and it’s those sanctions (which include providing tutoring and school choice) that are becoming worrisome for states and districts.

Although the administration does not intend to announce the final details until September, sources who have been briefed on the plans already have helped fill in the blanks. The waiver plan will be an all-or-nothing, take-it-or-leave-it package—no a la carte picking-and-choosing allowed. In exchange for a waiver from the 2014 deadline and more funding flexibility, states would have to adopt college- or career-ready standards, propose their own differentiated accountability systems, and adopt teacher evaluation systems based in part on student growth on state tests.

States to Duncan: Don’t Be Overly Prescriptive

States—which will cheer the promise of NCLB relief—have conveyed the message that the less rigid the federal department’s demands, the better, said Gene Wilhoit, the executive director of the Council of Chief State School Officers. Especially when it comes to any requirements for states to revamp their teacher evaluation systems, states will need time to plan, develop, and test those systems, Wilhoit said.

“I think if [the waiver package] is too prescriptive, we’re going to get involved in a battle again, and some states are going to walk away,” Wilhoit said in an interview.

The details can’t come soon enough for some states that are already standing in line for their waivers. States including Michigan, Tennessee, and Kentucky have jumped the gun and already asked for waivers, while Idaho, South Dakota and Montana have informed the department they plan to ignore parts of the law, anyway.