Waiver Hopefuls Put Through Paces by Review Process

By Michele McNeil — February 21, 2012 8 min read
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Before awarding waivers from core tenets of the No Child Left Behind Act to 11 states, the U.S. Department of Education ordered changes to address a significant weakness in most states’ proposals: how they would hold schools accountable for groups of students deemed academically at risk, particularly those in special education or learning English.

The feedback from peer reviewers and the department, now available to the public, provides a road map for states hoping to win waivers in later rounds, and a warning that the department’s promise of flexibility is not unlimited.

“Obviously, we’re very, very hopeful with what all these states will do,” U.S. Secretary of Education Arne Duncan told reporters in a conference call announcing the waivers. “But if [at] any point we think states aren’t living up to their commitments or are somehow acting in bad faith, we obviously retain the right to revoke a waiver.”

Of the 11 applications submitted in November as part of the first round of judging, seven received full approval Feb. 9, and three won conditional approval, pending additional legislative or policy changes. New Mexico’s application, considered the weakest by the department, was approved Feb. 15.

At least 20 states are expected to apply for waivers by the next deadline, Feb. 28. A third deadline has been set for Sept. 6.

Getting the Nod

The U.S. Department of Education approved 8 states for waivers under the No Child Left Behind Act through the 2013-14 school year, but not before requiring changes to their original proposals. In addition, three states were awarded conditional waivers that will expire at the end of the 2012-13 school year if certain requirements aren’t met.


SOURCES: U.S. Department of Education; State Applications

Last year, amid congressional inaction on reauthorizing the Elementary and Secondary Education Act, whose current version is the decade-old NCLB law, President Barack Obama announced plans to award waivers to states that agreed to adopt priorities his administration favors—such as adopting common academic standards and tying teacher evaluations to student performance.

In exchange, states would get freedom to design their own accountability systems and ignore the NCLB goal that all students be proficient in reading and math by 2014.

Three states had special conditions put on their waivers: Oklahoma and Georgia both need to make their new grading systems final, and Florida needs to change its accountability system so that all students with disabilities and English-language learners are included.

If those states don’t comply with the conditions, their waivers will expire at the end of the next school year.

The other states—Colorado, Indiana, Kentucky, Massachusetts, Minnesota, New Jersey, New Mexico, and Tennessee—won full waivers good through the 2013-14 school year.

Despite great promises of flexibility, the department didn’t live up to all the talk, critics say.

“My main beef is their rhetoric—that it’s a new day. I don’t think the flexibility goes far enough to fix the flaws of NCLB,” said Michael J. Petrilli, the executive vice president of the Thomas B. Fordham Institute, a Washington think tank, and a former U.S. Department of Education official under President George W. Bush.

Weaknesses Flagged

Besides flaws in states’ plans to target subgroups such as special education students and English-learners, peer reviewers advising the Education Department found other problems in the initial applications, including:

• A lack of consultation with stakeholders in creating the waiver proposals;

• New grading systems that were too complex to be understood by parents and educators and that didn’t give enough weight to graduation rates;

• Significant weaknesses in using annual achievement targets to drive incentives and interventions for schools that are not in the lowest-performing category; and

• Vague plans for developing and implementing new evaluation systems for teachers and principals.

Those concerns were at the heart of changes states had to make to win the department’s approval.

New Mexico, for example, committed to improve public input by convening a task force of teachers, parents, and other stakeholders as it develops its new teacher- and principal-evaluation system.

And, said Hanna Skandera, New Mexico’s secretary of education-designate, federal officials wanted proof of a “plan of intervention for schools that have large achievement gaps.”

Florida had to change its plan so that even high schools that earn grades of A, B, and C would be targeted for interventions if they have low graduation rates.

Indiana had wanted to use only its new “super-subgroup"—a combination of smaller, traditional subgroups of at-risk students—in its accountability system, but had to return to setting annual achievement goals for those smaller subgroups, too.

Though he doesn’t go as far as the critics, Indiana Superintendent of Public Instruction Tony Bennett, an elected Republican, did say the flexibility perhaps wasn’t as great as states had hoped.

“I think forces beyond the control of the department created a system where maybe what the department conveyed to states would be the level of flexibility, and where it ended, were a little different,” he said.

Regardless, he sees these waivers as big victories for states that have operated under the NCLB law, and their own individual accountability systems.

“We have had this two-accountability system for so long that the ability to move to one accountability system in and of itself was huge,” he said.

Sensitive Subgroups

States seemed to have their biggest problems articulating how they would make sure students in special education and English-learners have access to rigorous coursework that will prepare them for common academic standards and how their teachers will get the professional development they need. In addition, states didn’t have good plans for how to build evaluation systems to incorporate the teachers working with those students.

But it may be too early to tell if the changes states made will satisfy those concerns.

“Students with disabilities will be highly impacted because they will be in all schools, and they may have few numbers so they don’t carry much weight,” said Laura Kaloi, the public-policy director for the National Center for Learning Disabilities, based in New York City. “The most critical question going forward is how the department will monitor this.”

A spokesman for the Education Department said officials weren’t ready yet to talk about how they planned to hold states to their waiver promises.

The weaknesses in states’ plans to improve achievement for students with disabilities and English-learners was emblematic of a much more fundamental issue that states—and the department—struggled to address: how to keep the focus in new accountability systems on subgroups of at-risk students, which many agree is something that No Child Left Behind has done well.

Most of the 11 states are shifting the emphasis away from small, distinct groups of students considered at academic risk—such as members of racial or ethnic minorities or English-learners—into larger super-subgroups like the one Indiana is using.

The NCLB law’s treatment of subgroups certainly has had its flaws, many advocates agree. A single failing subgroup could trigger sometimes-severe sanctions for an otherwise high-performing school. And often, subgroups were too small to be factored into accountability systems, meaning some schools weren’t held accountable at all for groups at risk.

“In order to upgrade accountability, we needed to do some combining to make sure students weren’t getting lost, but the department pushed back pushed back pretty hard,” said Chris Minnich, the senior membership director for the Council of Chief State School Officers, who added that states improved their plans to report on and pay attention to those groups.

For example, Kentucky held just 21 percent of schools accountable under the NCLB law for their minority students because the rest had too few such students for them to qualify as a subgroup. Under the state’s new system, 99 percent of schools will be held accountable for minority students.

‘Get-Out-of-Jail Card’

But civil rights and other advocacy groups don’t want this progress to come at the expense of specific groups of students that may struggle but whose low performance may be obscured because they are a part of a larger group.

“You could move one subgroup and leave the rest behind and get yourself a get-out-of-jail-free card,” said Amy Wilkins, the vice president for government affairs and communications at the Education Trust, a Washington-based advocacy organization.

The Education Department clearly tried to protect subgroups. In the next round of applications, it added a requirement that makes clear states must report on the performance of individual student subgroups also specified under the No Child Left Behind Act.

“We fully believe that these states’ accountability plans will reach more children [and] will get more resources to the children most at risk,” Secretary Duncan said.

But whether that will actually happen is unclear, as merely reporting data is different from requiring interventions, which is a central element of the NCLB law.

An Education Trust analysis, for example, points out that Indiana’s subgroup performance, though it will be reported, doesn’t factor into its A-to-F grading system. And while Oklahoma schools will earn a “plus” or “minus” grade based on subgroup performance, those designations don’t control how the state identifies struggling schools.

States that need more time to develop their waiver proposals can ask the federal department for a one-year freeze in their annual achievement targets to keep the list of schools not making adequate yearly progress from growing. AYP is the law’s key mechanism for tracking schools’ performance.

But even that temporary flexibility comes with strings: States must agree to adopt college- and career-readiness standards, provide student-growth data to reading and math teachers, and report achievement and graduation gaps for each NCLB subgroup.

New Hampshire and Maine are among the states planning to take advantage of the offer. In a joint Feb. 13 letter to Secretary Duncan, education commissioners from the two states said they needed more time to figure out how to make the department’s waiver requirements work in their rural states—namely, the requirements around intervening in low-performing schools and evaluating teachers based on performance.

Maine’s Stephen Bowen and New Hampshire’s Virginia Barry wrote: “Rushing to create and implement a plan ... will result in a less thoughtful system that ill serves the students in our states.”

Assistant Editor Sean Cavanagh and Staff Writer Alyson Klein contributed to this article.
A version of this article appeared in the February 22, 2012 edition of Education Week as Waiver Hopefuls Put Through Paces by Review Process


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