States Cautious on Duncan’s NCLB-Flexibility Offer

By Michele McNeil & Alyson Klein — June 20, 2011 8 min read
U.S. Rep. George Miller, D-Calif., left, the leading Democrat on the House education committee, listens as U.S. Secretary of Education Arne Duncan makes a point during a discussion of reauthorization of the Elementary and Secondary Education Act on June 14 at the Center for American Progress, a Washington-based think-tank.
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States seeking relief from the requirements of the 9-year-old No Child Left Behind Act are taking a wait-and-see approach to U.S. Secretary of Education Arne Duncan’s plan to offer those that embrace his reform priorities wiggle room when it comes to the law’s mandates.

But the idea of waivers is already facing hurdles on Capitol Hill—drawing criticism even from the administration allies. And while the department points to waiver powers that Congress included in the Elementary and Secondary Education Act, some naysayers are wondering whether Mr. Duncan has the legal authority to offer states broad leeway on the law’s accountability requirements.

Details on the waiver proposal remained sketchy last week, but it’s clear that states will have to embrace an all-or-nothing package of reforms from the department in exchange for relief under the ESEA, the current version of which is the NCLB law.

“This is not an a la carte menu,” Secretary Duncan said during a June 13 call with reporters.

Carmel Martin, the department’s assistant secretary for planning, evaluation, and policy development, added that the department would aim to create a “framework available to all states. We don’t want a blanket waiver. On the other hand, we don’t want to have individualized processes from every state.”

The department says new flexibility may be necessary because Congress has been slow to act on the law’s renewal. A bipartisan group of senators has been meeting regularly to discuss reauthorization for months, but has yet to produce a bill.

In the GOP-controlled House of Representatives, Rep. John Kline, R-Minn., the chairman of the education committee, has decided to break the rewrite up into small, targeted pieces. But the House panel is not expected to begin to tackle the accountability issues at the heart of the law until the fall—after the administration’s goal of completing the bill by August.

Conflicting Goals?

With the law’s 2014 deadline for states to get all students to proficiency on state math and reading standards fast approaching, states generally are eager for details on the administration’s waiver package. But state officials also caution that they don’t want to take on new federally driven commitments that could get in the way of their own plans for education overhaul.

For instance, Kentucky—which is in the midst of implementing a new accountability system based in part around the Common Core State Standards Initiative—would take a serious look at any waiver proposal, said Lisa Gross, a spokeswoman for the state education department.

The Bluegrass State has generally supported Mr. Duncan’s agenda, she said. “We don’t have any quarrels with the secretary’s priorities because they’re our priorities too,” she said.

But, Ms. Gross added, the state would be especially interested in a waiver proposal that would move the federal accountability measure closer to the state’s own system for gauging schools’ progress. Kentucky’s new accountability system considers student academic growth, outcomes on subjects other than reading and math, and scores on end-of-course exams for accountability purposes, she said.

Similarly, Kansas Commissioner of Education Diane DeBacker said she’s confident her state will be able to meet Mr. Duncan’s conditions for waivers, which could include a robust longitudinal data system and adopting the common-core standards.

But she pointed out that if any of those conditions require Kansas to change its laws, that would be more difficult since her state’s legislature won’t be back in session until next year. In fact, that is a problem for most states, as all but nine have part-time legislatures that wrap up their business by summer.

In May, Kansas was denied a waiver from the department to hold its student-achievement targets at 2009-10 levels as it transitions to the common core. Districts are feeling increasing pressure not only because the 100 percent proficiency deadline is approaching, but because state education funding continues to be cut.

“You combine the increasing targets with fewer resources, and after awhile it’s like, ‘Boy, can they hit us with one more thing?’ ” she said.

Arkansas asked for, and was denied, a similar waiver in May and is interested in whatever package Mr. Duncan comes up with. However, said Arkansas education department spokesman Seth Blomeley, “something major may not be doable, given our ongoing initiative of instituting common core.”

Strings Attached

And not everyone is enthusiastic about the idea of departmental waivers. Robert Scott, the commissioner of education in Texas, said he’s “intrigued by the idea of flexibility” but wary of the “strings attached.”

He’s also worried that the department might waive pieces of the law that are working well for some schools in the Lone Star State, such as the requirement that underperforming schools offer free tutoring. And, as a former Capitol Hill staffer, he’s not sure that the department is on firm legal standing in suggesting waivers.

“I know it can be frustrating at best to bring all sides together,” he said. But lawmakers “need to deliberate” issues such as the best way to hold schools accountable.

Not all state schools’ chiefs agree with Mr. Scott’s reservations.

Indiana Superintendent of Public Instruction Tony Bennett said he thinks Mr. Duncan is taking the right approach.

“I think states should be able to, and be required to, show that they are willing to pursue strong reforms in exchange for federal flexibility,” said Mr. Bennett, who is also the chairman of Chiefs for Change, a coalition of 10 current and former state chiefs who describe themselves as advocates of “bold, visionary education reform.”

He said any waiver plan should put a premium on states that are willing to more aggressively target improving student growth as measured by test scores and retool their teacher-evaluation systems to focus not on inputs, such as advanced degrees a teacher may have, but instead on outcomes, such as student test scores.

“I do not support in any way a blanket waiver that does not have true education reform as part of it,” he said.

Idaho was more cautious about the idea of waivers. The state recently passed a comprehensive education overhaul package that includes big changes—such as doing away with tenure for new teachers, said Melissa McGrath, a spokeswoman for Tom Luna, the state superintendent of schools.

Idaho would have to carefully consider whether the waiver package would complement the state’s own reform strategy, which has caused controversy in the state.

For their part, advocates for local districts are also skeptical of the idea of waivers, particularly if states are being asked to embrace certain policies in order to get the flexibility.

“We’re very concerned about any effort that looks like conditional regulatory relief,” said Noelle Ellerson, the assistant director for policy analysis and advocacy at the American Association of School Administrators.

Instead, the AASA is calling for targeted, regulatory relief, urging the department to stop the clock on NCLB’s sanctions to give Congress some time to finish the law’s renewal.

Hill Pushback

Meanwhile, the idea of waivers has hit strong resistance with key lawmakers on Capitol Hill. The chairmen of the House and Senate education committees—Rep. Kline, in the House, and Sen. Tom Harkin, D-Iowa—both expressed concerns. On June 10, Sen. Harkin called the waiver route “premature.”

And Rep. Kline said June 13 that while he favors flexibility, the plan might actually muddy the waters for districts.

“I remain concerned the Department of Education’s plan to offer waivers in exchange for reform is not flexibility and could result in additional regulations and confusion for schools,” he said. “The department should tread carefully with any scheme that bypasses the legislative process; we must not allow temporary measures to undermine quality, long-term reforms.”

Even U.S. Rep. George Miller of California—the top Democrat on the education committee and one of the administration’s closest allies in the House when it comes to K-12 policy—expressed qualms about the proposal.

“I just hope people don’t see [waivers] as an escape route,” said Rep. Miller at a event held June 14 at the Center for American Progress, a think tank in Washington. “My hope is that we don’t go with Plan B,” meaning waivers. “I think Plan A,” meaning reauthorizaton, “is essential.”

Secretary Duncan agreed that he’d rather see lawmakers act swiftly on reauthorization.

“We can’t afford to do nothing.” But he said at that same forum that the waiver idea isn’t a done deal. “All we [said] over the weekend is that we were just thinking about it,” he said.

Legal Leeway?

But that hasn’t stopped some from saying that Mr. Duncan is overstepping his authority in demanding changes in exchange for waivers.

Congress gave Mr. Duncan clear and broad authority under the NCLB law to grant waivers, except in certain circumstances, such as civil rights. He used that authority 315 times in his first year in office, mostly to waive certain NCLB requirements as they pertained to states’ spending of economic-stimulus funding dollars.

But, says Michael J. Petrilli, the executive vice president of the Washington-based Thomas B. Fordham Institute, “What can you demand as a quid pro quo? They are on safe ground if they simply require states to demonstrate that they have implemented NCLB … faithfully. But they can’t make up new requirements.”

The Education Department disagrees.

“As part of this broad authority to waive requirements, the secretary has the authority to set reasonable conditions and limits on these waivers to ensure that the ESEA programs subject to these waivers are carried out in a responsible and effective manner to improve student achievement,” said spokesman Daren Briscoe.

Christopher T. Cross, who spent nearly three decades working on education policy in Washington, including as an assistant secretary of education under President George H.W. Bush, tends to agree with the department’s official line.

But, he said, “This is such uncharted territory. The issue is, of course, how those conditions [Mr. Duncan sets] relate to the underlying law. I think he’s trying to do the best he can under a situation that needs some remedies.”

A version of this article appeared in the July 13, 2011 edition of Education Week as States Cautious on Duncan’s NCLB-Flexibility Offer


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