Sec. Duncan in Weaker Spot on NCLB Waiver Renewals

By Alyson Klein — February 12, 2015 6 min read
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U.S. Secretary of Education Arne Duncan is entering negotiations with states on renewal of their No Child Left Behind Act waivers with a weakened hand, and may find it hard to press them on key Obama administration priorities. Chief among those: testing, accountability, and the requirement for teacher-evaluation systems that take student outcomes into account.

The back and forth between states and the U.S. Department of Education officially kicked off last month as the first handful of states applied to extend flexibility from many of the mandates of the NCLB law for up to four years. It may well be the administration’s last chance to put its stamp on K-12 accountability before it closes up shop in early 2017.

But the process is unfolding as Congress considers legislation to overhaul the law that would undo much of the work of the waivers when it comes to rigorous standards, school turnarounds, and teacher evaluation. In fact, a draft Senate proposal would prevent the Education Department from trying something similar to the waiver scheme ever again under the Elementary and Secondary Education Act, of which the NCLB law is the current version.

Teacher evaluation—which has been the trickiest area of waiver implementation—is likely to also be the toughest area for the department to enforce in renewal of the waivers now held by 42 states and the District of Columbia.

“I think there’s going to be so much state pushback on that that the department may have to be open to negotiations on what states put in for teacher evaluation,” said Terry Holliday, Kentucky’s education commissioner.

What’s more, once the waivers are a thing of the past, either through an NCLB update or because a new administration has ended them, “I think we’d all quickly abandon all the work on tying teacher evaluation to test scores,” Mr. Holliday said.

For his part, Secretary Duncan said he doesn’t think the department’s expectations for waiver renewal will be different, even with a reauthorization of the ESEA brewing on Capitol Hill. “We have to separate these two things out,” he said in an interview.

Lone Star Standoff

The department initially drove a hard bargain on teacher evaluation. It yanked Washington’s waiver because that state’s teacher-performance system didn’t require the use of student results on state assessments. And it dragged its feet for over a year on approving Illinois’ waiver because the state’s timeline for using such scores didn’t conform to the department’s vision.

But then the administration began allowing states to hit the snooze button on their teacher-evaluation systems when it became increasingly clear that many of its requirements and the timeline were a tougher lift than expected. Most recently, the department allowed states to push off using test scores in performance reviews for an entire school year.

It’s clear some states are ready to push the department’s envelope even further. After the administration told Texas that its teacher-evaluation system needed some serious retooling, Michael Williams, the commissioner of education in the Lone Star State, said he would take the department’s concerns into consideration, but stick to his own principles.

Texas doesn’t stand to lose much in the standoff, said Monty Exter, a lobbyist for the Association of Texas Professional Educators, the largest organization of educators in the state, with 100,000 members.

“I do think the department is probably inclined to work with states right now in helping them achieve their waivers,” he said. “With the reauthorization talks going on right now and Congress looking to limit [federal officials’] ability to even grant waivers, they are in a way weakened position from where they were a year ago.”

And even if the federal government fails to extend Texas’ waiver, it’s unlikely to take steps such as pulling Title I funds.

“When we talk to [the Texas Education Agency] we say kudos to them,” Mr. Exter said. “We are not willing to give away local control in order to receive a waiver, which seems to be of ever-decreasing importance.”

State Postures Differ

Meanwhile, some lawmakers in Washington state are making a second push to regain that state’s waiver. Washington lost flexibility last year because its teacher-evaluation system doesn’t require districts to use state test scores.

But the Washington Education Association is keeping tabs on the action at the U.S. Capitol—and urging its legislature not to touch the evaluation system now that a rewrite of the ESEA might be within sight.

Changing the evaluation system to require the incorporation of test scores on state exams at the department’s behest “makes even less sense now ... when Congress is apparently going to change the overarching law in question,” said Rich Wood, a spokesman for the WEA, a National Education Association affiliate.

Not every state is in the mood to flout the department and potentially risk losing a waiver, though. Maine’s acting commissioner, Tom Desjardin, is taking a letter from the department about the state’s teacher-evaluation system seriously. The department has said, among other things, that it’s unclear whether Maine’s teacher-evaluation plan takes state scores into account—the same problem it identified in Washington state.

Mr. Desjardin is working with state lawmakers to correct the problem, even though he realizes the game may change on him if Congress reauthorizes the ESEA soon. “All we can do is look at the current law and do the best we can to satisfy that,” he said.

But Rep. Brian Hubbell, a Democratic state lawmaker, said he doesn’t think Maine’s waiver is at any real risk since the department’s letter doesn’t explicitly threaten revocation. In fact, Mr. Hubbell is introducing a bill that would push back the state’s teacher-evaluation timeline, allowing the state to continue piloting its system next school year.

California Accountability

To be sure, teacher evaluation isn’t the only issue the department will have to negotiate with states. California, which doesn’t have a statewide, comprehensive waiver from NCLB-law mandates, is seeking to push off for another year requiring its schools to demonstrate adequate yearly progress, or AYP, through scores on new tests aligned to the Common Core State Standards.

Last year, the Golden State secured what amounts to a year’s reprieve from AYP when it applied for—and got—a one-year waiver allowing it to use common-core-aligned field tests for all its students instead of the existing state test. Field tests are considered experimental, and generally are not used for accountability purposes. And the state never released the student data from the field tests being developed by the federally funded Smarter Balanced Assessment Consortium.

Now, California is asking permission from the federal Education Department to use graduation rates, attendance rates, and participation rates on the Smarter Balanced exams—but not student scores—as measures of whether schools are meeting AYP. State officials are essentially arguing that, since there’s no real baseline data for last year’s field tests, there’s no way to really track schools’ progress using student outcomes on those exams.

It’s unclear if Mr. Duncan will give the go-ahead—he said in an interview only that he hadn’t yet fully examined California’s request.

But former U.S. Rep. George Miller, D-Calif., who was critical of the department’s original approval of the Golden State’s testing flexibility, is highly skeptical of the ask.

“When [California] got the [flexibility], the suggestion was that [the state was] going to be a lot smarter this year. And I hope they are,” he said, of the accountability pause.

Indeed, Mr. Holliday, of Kentucky, said there are going to be clear limits to how much flexibility states can get from the department.

“I’ve got an office right beside mine that says ‘Don’t Enter. This is waiver [renewal] Hell,’” he said. “They are still asking what we are going to do in 2018, and who knows for sure. Why do we need to know what we’re going to do in 2018?”

But he’s going to have to figure it out, he said, because for now, waivers are the only game in town. “I think we’ve got some leverage, but I think they still got the cards.”

A version of this article appeared in the February 18, 2015 edition of Education Week as NCLB Waiver-Renewal Gears Up; Duncan Holds Weakened Hand


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