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Waiver Watch: Can States Go Their Own Way?

Published:  September 13, 2012
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Image used under GFDL license from user Cassowary.

With fresh, third round ESEA flexibility requests from Alabama, Alaska, Hawaii, Maine, New Hampshire, North Dakota, and West Virginia, along with Puerto Rico and the Bureau of Indian Education, the U.S. Department of Education has received 47 waiver proposals since last November. Thirty-three states and Washington, D.C. have been approved to date, leaving only Illinois, Idaho, and Iowa with outstanding requests from the second round. Initial concerns about the “strings attached” to the waivers – i.e. college- and career-ready standards and assessments, differentiated accountability and improvement systems, and educator evaluations based on student achievement – haven’t slowed the process. Only six states have failed to take the Department up on their offer for increased flexibility under No Child Left Behind: California, Montana, Nebraska, Pennsylvania, Texas, and Wyoming (although an additional state, Vermont, submitted a request and later withdrew it from consideration).

But that doesn’t necessarily mean these states are rejecting the waiver game altogether – rather, they are rejecting the rules spelled out by the Department and making their own. While Montana, Wyoming, and Pennsylvania have all requested limited waivers which would allow them to freeze their performance targets, California and Texas are pushing the boundaries further and going rogue. Instead of using the Department’s application, which requires states to sign off on waivers for at least ten provisions of NCLB and agree to 15 assurances, they are picking, choosing, and in some cases, adding to what the Department is offering. Although both states’ attitudes toward the feds’ flexibility deal appear similar – for instance, they both want to rely solely on their long-standing state accountability systems for schools – below the surface, California and Texas have completely different visions for ESEA flexibility.

Short, and Not So Sweet

While most states took hundreds of pages to document their efforts to adopt college- and career-ready expectations, differentiated accountability and support plans, and effective instruction and leadership systems, California needed only nine. Why so short? Is California really committed to these reforms? The state has been criticized for its lack of effort and resources in implementing Common Core and for its minimum expectations when it comes to teacher evaluations. Coupled with the state’s fiscal crisis, the Department should seriously question California’s capacity and will to improve. California is asking to waive only two of the ten required NCLB provisions – both of which would allow the state to use its existing and hardly perfect Academic Performance Index (API) to hold schools accountable. The State Board of Education will “consider” revising the performance targets and measures within the API, but California, it seems, is determined to make no promises and put in as little effort as possible.

With California blatantly ignoring the Department’s “all-or-nothing” approach to waivers and the commitments to all the principles of ESEA flexibility made by other states, California officials cannot possibly expect the feds to go along with their anemic request. Sure, California has a lot of political clout in an election year. But it is not worth undermining the credibility of the Department and the flexibility process – not to mention the education of millions of California students – to shore up a state that is already leaning heavily toward President Obama.

Bigger, Definitely Not Better

California may have thumbed its nose at most of the substance within the Department’s flexibility plan, but Texas is actually embracing it. The Lone Star State intends to apply for every one of the ten waivers included in the flexibility request, in addition to the three optional waivers offered by the Department related to extended learning time, prioritizing Title I funds for eligible high schools with low graduation rates, and removing Adequate Yearly Progress determinations from school report cards. While not a Common Core state, Texas appears more than willing to make the case for its own standards and assessments and demonstrate how they are aligned with college and career readiness. And although the state has not passed teacher evaluation reform to date, most of the states applying for waivers do not have all of the principles of high quality evaluations in place – and are essentially pledging to adopt them and implement them by the 2014-15 school year. So if Texas is already committing to most of what the Department is asking, why are they still going their own way?

Because Texas wants more. Namely, they’d like to rewrite the entire Title I funding formula and decide how the state’s nearly $1.4 billion allocation should be distributed to districts. Texas has not yet specified an exact methodology (or what it finds so offensive in the current formula – though there are many valid criticisms), but promises to account for districts’ identified needs in terms of economically disadvantaged students, English Language Learners, and whatever “educationally disadvantaged” students means. And since one of the standard waivers Texas is requesting would give the state the option to transfer funds from other ESEA programs to Title I, the state is essentially requesting limitless funding flexibility within ESEA – without actually specifying how the new, Texas Title I formula would work.

The state may be promising to hold schools accountable, but how can the federal government hold Texas accountable for improving outcomes for disadvantaged students if the state won’t describe how the funds will be distributed? Giving a state this much discretion within Title I, in addition to what the feds are already offering, would be unprecedented, quite possibly illegal, and potentially disastrous for Texas’ Title I schools and the students they serve.

To add insult to injury, Texas also wants to waive the provision that defines annual measurable objectives (AMOs), opening the door for the state to lower, or even eliminate, performance targets for students and subgroups. AMOs stirred up controversy in other waiver winners (like Virginia), as states attempted to alter, or even undermine, subgroup accountability in their AMOs, particularly through the use of “super subgroups.”

Whether big or small, rogue approaches to ESEA flexibility aren’t likely to work for states anytime soon. Even though the Department of Education is willing to negotiate, both California and Texas have a long way to go before their requests should be considered seriously.

But will state officials be willing to change their proposals if the Department’s waivers continue to be the only viable option for states seeking relief from NCLB? By removing the additional requests and their outlandish Title I funding proposal, Texas would likely be able to secure a waiver after some back-and-forth with the Department. California would have more revisions to make to get their proposal in shape (it was only nine pages, after all). Still, the state adopted Common Core, joined the Smarter Balanced Assessment Consortium, and has many of the components of a strong accountability system in place. Evaluations of teachers and principals – and how to pay for them – are the primary sticking point. But at least for now, it appears California and Texas will continue to go their own way… even if it gets them nowhere.


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