Hurdles for NCLB state waiver

With congressional Democrats and Republicans looking like they’re headed for more gridlock, this time on education, Secretary of Education Arne Duncan confirmed Monday that the Obama administration would permit states to seek waivers from the tightening screws of the No Child Left Behind law.

California could certainly benefit from waivers and would prefer its own accountability system as an alternative to the feds’. But it also could have a hard time persuading the feds to grant it a waiver.

The details of the waiver requirements won’t be published until next month; Paul Hefner, spokesman for Superintendent of Public Instruction Tom Torlakson, said the state would wait to see them before deciding whether to apply for a wavier.

But Duncan and others have indicated that states would have to commit to conditions for reform similar to those required of states seeking money from Race to the Top: using a statewide data system to inform decisions; creating teacher evaluation systems based on multiple criteria, including student test results; taking actions to turn around the lowest performing schools; and adopting career and college readiness standards. California at this point might flunk the first three of the four measures.

The statewide student data system, CALPADS, remains behind schedule and more limited in scope than other states’ systems. Gov. Jerry Brown mystified Duncan by rejecting $2 million in federal money to build a teacher database, CALTIDES, which would have provided insights into teacher training programs and teacher placements.

A bill on teacher evaluations, AB 5, amended to appease the California Teachers Association, may go nowhere this year – and could be interpreted to prohibit using standardized tests to judge teachers’ performance. And the state Department of Education was chastised this spring by the feds for their inadequate monitoring of the lowest performing schools that received more than $133 million last year in federal School Improvement Grant money.

Furthermore, years ago officials in the Bush administration for technical reasons rejected California’s request for a waiver to implement a different accountability model, using growth in API scores.  California has made no efforts to design a new assessment system to accommodate the feds’ objections. Put all these factors together, and California would face tough odds in persuading the feds to grant a waiver.

Exceeding his authority under the law?

Duncan’s critics charge him with using waivers to swap the Administration’s concept of education reform for NCLB’s requirements, superseding the intent of Congress. That would appear to be the case. But Duncan is also responding to states’ call for relief from NCLB’s chief provision: the unrealistic demand that all students be proficient in math and English language arts by 2014 – with stiff penalties for schools that fail to comply.

Duncan has predicted that 82 percent of schools across America would fail to make NCLB’s targets this year. I and others have doubted that estimate; even in California, with very high academic standards among states, only about half of schools will fail to meet targets because of a “safe harbor provision” that lets many schools improve at a slower rate.

Nonetheless, states resent the 100 percent proficiency requirement, and there has been bipartisan resolve to modify  or abolish the provision when No Child Left Behind – or the Elementary and Secondary Education Act, as it’s formally known – is reauthorized. Duncan said he could be criticized for tone deafness” if he ignored states’ pleas.

But reauthorization is already years late, and now it’s appearing unlikely that a new version will be passed before the November 2012 elections. That’s why U.S.  Rep. George Miller, the veteran East Bay congressman who is the ranking Democrat on the House Education and Workforce Committee, now supports Duncan on waivers, reversing a position he had a few months ago. Then, he agreed with his Republican counterpart, Committee Chairman John Kline of Minnesota, that waivers would distract the Committee from its goal of reauthorization this year. Since then, Kline and Republicans pushed through the Committee a bill that would give states flexibility to spend Title I funds as they want. For Democrats and civil rights groups, that violated a 50-year commitment to improve education for poor children and English learners and was a clear signal that reauthorization was in trouble.

The Title I bill was “a partisan reality check,” Miller said. “I share the Secretary’s concern that the push for legislation is in some peril.”

Miller is hoping that Duncan does not take a rigid approach to the waivers. He wants Duncan to permit alternatives to turning around the lowest performing schools to only the four models allowed under Race to the Top. And he doesn’t favor  the federal government setting the percentage that student test results must comprise a teacher’s evaluation.

In general, Miller supports the Duncan’s conditions for waivers, and he said is disturbed by Brown’s position on data use. “California continues to get itself twisted in knots over data. The politics in the state does not want to encourage a modern, effective data system.”

Author: John Fensterwald - Educated Guess

John Fensterwald, a journalist at the Silicon Valley Education Foundation, edits and co-writes "Thoughts on Public Education in California" (, one of the leading sources of California education policy reporting and opinion, which he founded in 2009. For 11 years before that, John wrote editorials for the Mercury News in San Jose, with a focus on education. He worked as a reporter, news editor and opinion editor for three newspapers in New Hampshire for two decades before receiving a Knight Fellowship at Stanford University in 1997 and heading West shortly thereafter. His wife is an elementary school teacher and his daughter attends the University California at Davis.

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