Policy Analysis | October 2011

NCLB Waivers, Part Two

Jonathan Watts Hull

Following the recent announcement of waiver's from the requirements of the No Child Left Behind Act, several states immediately indicated their intention to seek relief from the Act. The immediacy of the response by states is indicative of the degree to which the law, now four years past the date when it was supposed to have been renewed, is in need of revision. Congressional inaction on the reauthorization means that, as noted in a previous Ednotes on the Issues, school districts have two years to bring all students to proficiency in math and reading. Given current trends, no district will achieve this target, placing nearly every school district in the country under some form of federally mandated sanction

While states will have multiple opportunities to submit for waivers by the end of the current school year, states wishing to have responses prior to the beginning of the 2012 legislative session must apply by November 14. For states unable to meet the November 14 deadline, but desiring to apply for waivers, the U. S. Department of Education will allow them to hold their accountability targets constant for a year while they assemble their applications. States seeking relief from the Act's provisions, including the 100 percent proficiency target, must adopt specific reforms proposed by the Deparatment. In much the same manner as with the Race to the Top grants, but to an even greater extent, the Department is using the waiver procedure included in the Act to, for all practical purposes, bypass Congressional prerogative in establishing education policy. The president acknowledged that the law needed to be revised, or states would be faced with an untenable situation.

States granted a waiver would be able to walk away from the increasingly troubling 100 percent proficiency target required by NCLB by 2014, instead focusing on making meaningful progress toward annually measureable objectives without a hard deadline. States are asked to set ambitious, reasonable goals for progress, which affords states opportunities to focus on reducing achievement gaps or raising overall achievement rates or other goals. States seeking waivers must adopt college and career readiness standards and measure student progress using new, aligned assessments. The proposal acknowledges the progress states have made on common core standards and next generation assessments and brings federal education policy in line with the developing reality of education in the states. While states are not specifically required to adopt either common core standards or be participants in one of the two assessment consortia, participating in these processes will make waiver approval more assured.

States already in the mix

A great number of states that have either applied for or indicated their intention to apply for relief from NCLB through the waiver process. States that were successful with the first two rounds of the Race to the Top grant program are well positioned to receive relief and are, unsurprisingly, leaning toward applying for waivers. On the other hand, a number of states, including Texas, New York and Washington, have expressed skepticism over the prescriptive nature of the reforms included in the waivers.

A complication in issuing select states conditional waivers is that this establishes a two-tier education system, with one set of states operating under an older accountability system that is almost universally acknowledged to be broken, and a larger cohort of states operating under an accountability system which has not been vetted by Congress. It seems unlikely that a third option, of simply returning accountability to the states (as proposed by Tennessee Senator Lamar Alexander) will gain much traction.

Looking beyond the basics

The guidance document distributed by the department made available late last month instructs peer reviewers for state applications to assess how prepared the state is to fully implement college and career readiness standards, including dissemination, teacher preparation, and professional development for them. Reviewers (who have not been named as of this writing) are asked to consider the degree to which state institutes institutions of higher education are involved in the reform of teacher and principal preparation, as well as the level to which the rigor of assessments aligns with postsecondary readiness and steps the state will take to remedy any deficits. The administration has been clear that it is setting a high bar for flexibility, which may result in some states unable to satisfy the process and win flexibility.

Teacher Quality

The NCLB requirements for highly qualified teachers (HQT) are amended in the waiver proposal to reflect recent shifts in teacher quality policies. States seeking waivers must commit to develop and implement a teacher and principal evaluation system that differentiates performance, provides professional feedback and is used to inform personnel choices. Essentially, states earning waivers would be released from the HQT requirements so long as they institute a measure of teacher quality of their own.

While the exact structure of this system is not spelled out, student academic growth is required to be a significant factor. Not all states are at the same point with such assessments, however. A growth model requires large investments in data collection and analysis, and while most states currently have systems in place that can track individual student progress, linking this progress to classroom teachers, particularly at the middle and high school levels, it often is still undeveloped. Furthermore, as the independent education think tank Education Sector. recently pointed out, growth models for measuring student achievement vary widely, and may return more information about how growth is interpreted than in how well students perform.

The Bottom 15 percent

One of the most vexing shortcomings with NCLB is that it applies sanctions to schools that fail to meet AYP in any manner, treating a school with a small population of children in a specific subgroup who are not achieving at expected levels in the same manner as a school in which the population is failing to meet learning targets across subgroups. While this does create pressure on schools to improve achievement for subpopulations that may otherwise have been overlooked, it also shifts resources and attention to schools in a manner that is not particularly efficient. States applying for waivers must differentiate their accountability systems, with primary focus on the poorest performing 5 percent of schools (called priority schools by the department) and additional attention on the next 10 percent of poorly performing schools (called focus schools). States have some flexibility in how they determine this status, as well as what interventions they can apply. This approach concentrates efforts on the most needy schools and offers relief from those in the middle, but may allow too many students to fail unnoticed. Indeed, if the predictions of college and career readiness made in a recent report from ACT are accurate, fully one-third to one-half of American students will need some intervention, a reality that the "15 percent policy" of the waiver approach overlooks.

Changing State Law

One of the principal hurdles states may face in applying for waivers will be the potential for changes to state laws. Unlike previous flexibility extended by the department in the past, the waivers being offered by the department under the current proposal are "all or nothing," which means state policy must conform to the expectations in the waiver applications for any flexibility to be extended. States that have adopted (or committed to) common core standards and a new generation assessment consortia are already in process, but teacher evaluation systems remain a major hurdle that will require legislative action. Also possibly requiring attention from state legislatures will be changes to interventions and rewards, which have both a structural component (largely the purview of the state board of education in most state) as well as a fiscal implication, which must be addressed by the legislatures. Given the timeline for consideration, states making promises of action and policy adoption will have a very short turnaround period in which to accomplish some significant policy shifts, a tall order under most circumstances, but even more so given the myriad challenge state legislators will be facing when they return to their capitols next year.

Bypassing Congress

The proposal of conditional waivers by the U. S. Department of Education has raised concerns on Capitol Hill and in state capitols of a bypassing of Congressional authority in crafting education policy. It also has been criticized for establishing a national education policy to an even greater extent than was done with NCLB. On the other hand, by allowing the reauthorization of ESEA to drag on for so long, even as states moved forward with reforms and innovations that do not fit the NCLB model, Congress placed states and the administration in the position of having no effective connection between federal policy and state activities.

The logic of awarding relief from the regulatory requirements of No Child Left Behind is that the system does not align well with the kinds of reforms states are engaging in today. In 2001, discussions of common standards and aligned assessments were nascent at best, and the process of evaluating educators and administrators was not considered as a factor in the assessment of teacher quality in the federal act. The past three years have seen tremendous activity on all three of these areas, with states taking action to implement new standards that are aligned with college and career readiness, new assessments that will be used across jurisdictions, and new teacher evaluation systems that aim to provide a better picture of teacher quality and effectiveness.

Had the ESEA reauthorization process been completed on time, it is uncertain whether these innovations would have been included in any rewrite. What is absent now, and will likely remain missing, is any national consensus on where education should move. In the years since NCLB was passed, there have been numerous voices from across the spectrum in support or opposition of key components of the law, but nothing amounting to a national debate on education. The administration's proposal to provide relief to states just ahead of a crisis for the ESEA likely will delay that broader discussion, as stakeholders respond to the components of the plan rather than assemble a comprehensive response to the issue of educational achievement and the relative role of local, state and federal government in assuring every child receives a high-quality education.