Waiver Plan Generates Relief, Fret

Details to come on ways NCLB rules would bend
By Alyson Klein & Michele McNeil — August 22, 2011 8 min read
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While the Obama administration’s plan to offer states relief from parts of the No Child Left Behind Act—if they agree to embrace unspecified education redesign priorities—has drawn kudos from some quarters, it isn’t sitting well in others.

Officials in a number of states have praised the idea as an opportunity for badly needed relief from what they see as unrealistic and punitive requirements of the federal law. But other states, including Montana and Washington, are skeptical of the plan, especially of the strings that will be attached. And some organizations and policy leaders—from the National Education Association to former U.S. Secretary of Education Margaret Spellings—have expressed outright opposition to such conditional waivers.

Secretary of Education Arne Duncan argues that waivers are necessary, since renewal of the Elementary and Secondary Education Act, whose current version is the NCLB law, has been languishing in Congress. The administration has not yet spelled out what the waivers will entail, but Mr. Duncan has said in speeches that they are likely to address such areas as teacher quality, standards, and accountability.

“We now have a law that impedes that progress, that impedes that reform, that stands in the way of the courage we’re seeing around the country,” Mr. Duncan said at an Aug. 8 White House press briefing. “And so what we want to do is put forward a very simple trade-off … where there’s a high bar, where folks are really doing the right thing for children. We want to give them a lot more flexibility, frankly, get out of their way and let them hit that higher bar.”

Independent Peer Review

Details of the plan are supposed to be announced in September, and states will have a “couple” of months to craft their applications. The applications will be peer-reviewed by people outside the federal Department of Education as part of a process that will be “public” and involve “a lot of give and take,” Mr. Duncan said.

But that process won’t take too long, as the department intends to award the waivers this school year. 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 might be waived. Under the No Child Left Behind law—and specifically the part that gives the secretary the authority to grant waivers—any such relief would expire after four years.

But before states and the Education Department even get that far, the waiver plan could face legal challenges. Though critics readily acknowledge that Mr. Duncan has the authority to grant waivers of conditions set by the nearly decade-old NCLB law, they have questioned whether he can do so in exchange for his own reform demands.

In fact, U.S. 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 the administration is not overstepping its bounds.

“I remain concerned,” he said, “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 Secretary Duncan countered that to do nothing to change the law would be to exhibit an unacceptable “tone deafness” to the pleas of states and districts. Nor, he said, is the waiver pacage going to undermine any action Congress may take.

Rallying the Troops

The administration has garnered the support of key Democratic lawmakers who were initially concerned that the waiver plan could derail a congressional renewal of the ESEA.

U.S. Rep. George Miller of California, the senior Democrat on the House education 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, Rep. Miller had expressed qualms about the waiver plan.

U.S. Sen. Tom Harkin, the Iowa Democrat who chairs the Senate Health, Education, Labor, and Pensions Committee, also had a change of heart. In June, he called the step premature, but now says he understands the secretary’s reasoning. “It is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything,” he said in a statement.

States are likely to cheer the promise of regulatory relief, said Gene Wilhoit, the executive director of the Council of Chief State School Officers. But he said the administration should craft the waivers in a way that allows for maximum flexibility, 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, Mr. 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,” he said in an interview.

Early Submissions

On the heels of the announcement, Minnesota and South Carolina officials said they planned to ask for waivers. At least three other states—Kentucky, Michigan, and Tennessee—have already submitted plans.

Other state officials lauded the general idea of waivers, including Tony Evers, Wisconsin’s schools superintendent, and Patricia Wright, the Virginia chief. In an Education Week opinion essay, Indiana chief Tony Bennett called the announcement “welcome news.”

Chiefs for Change, a bipartisan coalition of state education leaders chaired by Mr. Bennett, is also on board with the idea of waivers, although the group cautions that the federal Education Department should keep the bar high and only approve plans that “will advance, strengthen, or accelerate a systemic change in education at state and district levels.”

But at least one state—Washington—is unlikely to apply for a waiver.

The state hasn’t taken an official position on waivers, since details of the proposal haven’t been released, said Nathan Olson, a spokesman for the Washington education department.

Still, he added, “at this point, we probably won’t apply for a waiver. We want to effect positive change, not negative change,” Mr. Olson said. “By applying for a waiver, we would be sending a message validating NCLB. Students in Washington state are achieving at higher and higher rates. NCLB’s all-or-nothing approach undercuts that movement.”

Should Mr. Duncan’s waiver plan end up being an all-or-nothing package, that could be “problematic” too, said Denise Juneau, Montana’s schools superintendent. Last week, she resolved a high-profile, months-long standoff with the federal Education Department after she refused to increase proficiency targets that would put more schools into NCLB trouble. The department allowed her to raise targets minimally this year, limiting the impact.

“For this year, we’re very pleased with the outcome,” Ms. Juneau said. “We’re taking this year by year.”

She said Montana is interested in a waiver, but if, for example, her state must adopt a teacher-evaluation system based at least in part on student test scores to get one, that could be a deal-killer. While a state committee is looking at ways to improve evaluations, she said, her state doesn’t have the data infrastructure to make those changes yet.

No Retreat

Secretary Duncan’s immediate predecessor—Ms. Spellings—criticized the waiver plan last week on the Huffington Post, a liberal-leaning website. While Mr. Duncan can and should offer states flexibility to make the law work better, he must be mindful not to cave in to pressure to back away from the accountability goals at the heart of the measure, Ms. Spellings argued.

“The administration should resist calls to retreat from real reform,” she wrote. “Further, the secretary should be mindful of the bounds of the law, as enacted by Congress. He should not substitute his opinions about what constitutes good policy (like eliminating tutoring for struggling students or mandating national standards) as a quid pro quo for federal waivers.”

Others are sounding a note of caution about the potential impact of waivers. For instance, a joint letter sent to Mr. Duncan by the Education Trust, the National Council of La Raza, and the U.S. Chamber of Commerce suggested that waivers be limited to two years, in part so that the chance for congressional action remains.

The nation’s largest teachers’ union, the 3.2 million-member NEA, is opposed to conditional waivers. “What we need now is teacher-led and student-focused comprehensive reform instead of making states jump through more hoops,” President Dennis Van Roekel said in a statement. Advocacy groups for districts have similar concerns. If the Education Department wants to provide some relief from the NCLB law, it should do so on a state-by-state, case-by-case basis, the American Association of School Administrators and the National School Boards Association wrote in an Aug. 10 letter to Mr. Duncan. And the groups also worry that some districts would like waivers, but couldn’t get the relief unless their states applied.

Meanwhile, analysts wonder what effect the waivers could have on state-level efforts already in progress, particularly the Common Core State Standards Initiative. So far, nearly every state has pledged to adopt that project’s uniform reading and mathematics standards, developed in cooperation with the National Governors Association and the Council of Chief State School Officers.

But making adoption of those standards a requirement for a waiver could put a federal stamp on the standards, which could ultimately undermine the effort, wrote Michael J. Petrilli, a vice president of the Washington-based Thomas B. Fordham Institute.

“The only possible outcome of Secretary Duncan putting more federal pressure on the states to adopt the common core is to stoke the fires of conservative backlash—and to lose many of the states that have already signed on,” Mr. Petrilli wrote Aug. 8 on the think tank’s blog, Flypaper.

Mr. Duncan, however, unequivocally said last week that states will not have to adopt the common core to get a waiver. He said states that are not part of the common core could still win flexibility if they can “verify” their standards are high.

“I like common [standards],” Mr. Duncan said during an Aug. 18 taping of C-SPAN’s Newsmakers program, “but what is most important to me is high standards.”

A version of this article appeared in the August 24, 2011 edition of Education Week as Waiver Plan Generates Relief, Fret


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