Federal

Washington State Could Prove Test Case on Waiver Consequences

By Alyson Klein — March 24, 2014 6 min read
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What would happen if a state that’s received flexibility from mandates of the No Child Left Behind Act gets its waiver yanked and has to revert to requirements—and penalties—of the outdated, much-maligned law? Washington state may provide the U.S. Department of Education and its NCLB waiver system with a first test case.

Pulling a state’s waiver would force the Education Department to make a series of logistically tricky, politically charged decisions on a range of issues, including how to transition back to the NCLB law’s antiquated accountability system, which measures schools based on achievement only, not student growth, and requires all students to be proficient on state tests by the current school year.

Riding Herd

The challenge for the department may be in ensuring that a wayward state doesn’t get off easy, while not disrupting popular policy improvements brought about by the waivers. Washington state has been called out on the carpet for failing to create a teacher-evaluation-system that requires districts to take state test scores into account. But it already has a strong track record when it comes to supporting its lowest-performing schools, a weak area of waiver implementation for many other states, according to Education Department monitoring reports.

If the department decides to pull Washington’s flexibility, it must make the experience “painful enough so that other states see losing a waiver as something that they don’t want to go through,” said Anne Hyslop, a policy analyst with the New America Foundation, a think tank in Washington, D.C. “It can’t just be a perfectly consequence-free scenario, but it also needs to reflect some common sense.”

Under Washington’s teacher-evaluation system, districts don’t have to use state assessments as a factor in gauging educator performance. They can rely instead on student outcomes on local tests. That’s not permitted under the federal department’s waiver system, which insists on state exams.

Lawmakers and state education chief Randy Dorn tried to pass a bill that would have required every district to use the state tests, but the legislature couldn’t get it over the finish line, due in part to lack of support from the Washington Education Association, a National Education Association affiliate. That won’t help the state get off “high-risk status": Washington was warned in August that it could lose its waiver if its evaluation system doesn’t start incorporating only state tests.

So far, 42 states and the District of Columbia have been granted waivers by the Education Department. They’ve been given the flexibility to try out accountability systems that gauge schools on the basis of student growth, focus the most stringent interventions on the schools most in need, and back off the law’s 2013-14 proficiency deadline, which is widely panned as unrealistic.

Washington isn’t the only state in a precarious position. Arizona, Kansas, and Oregon are also on high-risk status and in danger of losing their flexibility.U.S. Secretary of Education Arne Duncan told chief state school officers in November that “odds are” the department would “revoke a waiver or two or three.”

But the Education Department may not be ready to throw in the towel on Washington just yet. It is still working with the state, said Dorie Nolt, a spokeswoman for the federal agency.

Mr. Dorn, however, thinks the loss of the waiver may be a foregone conclusion.

“The understanding is that they have to hold the line,” Mr. Dorn said of the Education Department. But he acknowledged that he’s not sure yet what waiver revocation could mean for his state. “This is new territory,” he said.

At a minimum, Mr. Dorn is hoping the state can hang on to its accountability system, which takes into account student growth.

David Powell, the executive director of Stand for Children Washington, an advocacy organization, also likes the waivers’ focus on student progress. But he notes that if the department pulls the state’s flexibility, two accountability systems would be far from ideal.

“I would like to hope that there’s nothing preventing Washington from continuing to calculate and report student-growth data,” he said. But he acknowledged that it could “become confusing for teachers and parents and others involved in education.”

Districts in Washington have a financial stake in the department’s decision. Those with schools that aren’t making adequate yearly progress, or AYP, under the NCLB law may have to begin setting aside money for school choice, tutoring, and professional development. In Washington state, that could total nearly $40 million, Gov. Jay Inslee, a Democrat, has estimated.

Whatever the department decides to do in Washington will affect a lot of schools, said Chad Aldeman, who served in the Education Department and worked on waivers. Seventy-two percent of schools in Washington didn’t make AYP in 2010-11, according to Education Department data, he noted. That percentage has probably only climbed since then, he estimated.

Mr. Aldeman said that under its waiver, the state must get 77 percent of all its students proficient in reading in the 2013-14 school year. But under the NCLB law, that figure would skyrocket to 100 percent proficiency. “That is a pretty large jump,” said Mr. Aldeman, who is now an associate partner at Bellwether Education Partners, a non-profit consulting firm in Washington.

The NCLB law requires a series of increasingly serious penalties for schools that fail to make AYP. Those that don’t meet their targets two years in a row must offer school choice. After three years, they must offer tutoring, and continued failure could lead to bigger and more dramatic interventions, such as governance changes.

If the department decides to pull Washington’s waiver—or any other state’s—federal officials would need to work out the NCLB compliance timetable for schools that would have gotten at least a two-year reprieve, the New America Foundation’s Ms. Hyslop said.

Washington state could restart the NCLB clock, putting every school back at square one, which would mean no penalties at all for any schools for at least a year. Or the administration could essentially proceed as if Washington never got a waiver in the first place, meaning a broad group of schools would be subject to harsh penalties.

Ms. Hyslop prefers a middle ground: The department could offer a specially tailored waiver for so-called “ex-waiver” states, allowing them to focus aggressive remedies on schools that are struggling the most.

Other Options

Mr. Aldeman had a similar suggestion. Waiver revocation could open the door for the Education Department to trot out a solution employed under the Bush administration: differentiated consequences. That could allow a state like Washington to sidestep the NCLB law’s penalties, which most experts agree haven’t been very effective, and continue its own interventions in the lowest-performing schools, he said.

There’s another solution, Ms. Hyslop said. The department could revoke only the part of Washington’s waiver that requires all teachers to be highly qualified—meaning they hold a bachelor’s degree and state certification. She reasoned that the state is primarily delinquent only on the teacher portion of its waiver agreement.

But that might not be enough of a stick.

“If that’s the only consequence, the department wouldn’t be sending a strong signal about how important teacher evaluations are,” she said.

A version of this article appeared in the March 26, 2014 edition of Education Week as Washington State Could Present Test Case on Waiver Stumbles

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