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What is Happening?Waivers andReauthorization

Leigh Manasevit, Esq.lmanasevit@bruman.comBrustein & Manasevit, PLLC

Spring 2012 Forum

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Where’s Waldo? 2

Mentions of NCLB are going, going…

…gone.3

2008 2012

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ESEA Reauthorization Timeline

NCLB January 2001 to January 2002

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Education Committees

House Education & WorkforceChairman John Kline (R-MN)Ranking Member George Miller (D-CA)

Senate HELP CommitteeChairman Tom Harkin (D-IA)Ranking Member Michael Enzi (R-WY)

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White HousePresident Obama, Secretary

Duncan:Reauthorization this year- urgent

Chairman Kline:Cannot allow an arbitrary

deadline to undermine quality reforms

“We can’t wait” 11/11 waivers granted and 26 States + DC applied in 2nd round

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Faux Reauthorization: Waivers

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Waiver Resources

Statute – NCLB Section 9401

Guidance –Title I, Part A – July 2009

Maintenance of Effort – See program statutes

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NCLB – What can be waived?The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT:

Allocation or distribution of funds to SEAs, LEAs or other recipients of ESEA $

Comparability Supplement not supplant Equitable service to private school

students Parent involvement Civil rights

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What can be waived? (cont.) Secretary may waive any provision, EXCEPT:

Charter school requirements (Title V)Prohibitions regarding state aid (9522);

using funds for religious purposes (9505)Selection of eligible school attendance

areas under 1113, unless % low income students is less than 10% below the lowest eligible school

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The Waiver WarsCouncil of Chief State School Officers (CCSSO) announces: Intention of our members to seek waivers to use new accountability systems.

Secretary Duncan announces that, in the absence of reauthorization, ED will explore flexibility options – regulatory and waivers in return for other steps: more rigorous accountability, teacher evaluation reform, etc.

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The Waiver WarsJune 23, 2011 Chairman Kline/ Chairman Hunter

to Sec. Duncan.“…the Departments proposal is cause for

concern….”“….to grant conditional waivers in exchange for

reforms [is] not authorized by Congress…”

July 6, 2011 Sec. Duncan Response“ESEA was due for reauthorization in 2007, and

students and teachers should not be burdened by its flaws for much longer.”

“…[We] have began to consider how to exercise our authority if Congress does not reauthorize ESEA soon, to invite requests for flexibility….”

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The AYP WarsApril 25, 2011 Montana to Sec. Duncan “I am delaying the scheduled increase of the

… (AMOs).”

June 21, 2011 Idaho to Sec. Duncan“In 2011,…Idaho will not lift its proficiency

targets for…[AYP].“Idaho…does not have the luxury of spending

limited time and limited resources on meeting the rigid requirements of an outdated accountability system….”

June 29, 2011 South Dakota to Sec. Duncan “…[We] intend to hold our…AMO targets at

the 2009-2010 levels.”

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The AYP StandoffJuly 1, 2011 Sec. Duncan

response to Montana“Unfortunately, this action

leaves the Department no alternative but to pursue enforcement action.”

Special ConditionsPossible withholding of Part A

Funds

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Montana to Secretary Duncan August 15, 2011:“Our offices were able to agree to a compromise that would place our AMO’s at…”“…[W]e will amend our…workbook…which will suffice for compliance with the law.”

July 27, 2011: Secretary Duncan to Idaho:“Idaho’s revised AMO’s are consistent with the requirements under….[NCLB]”“…I am pleased to approve Idaho’s amended plan…”

South Dakota to ED August 2, 2011:“…During that phone conversation, South Dakota’s proposed AMO’s for reading were approved….”

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June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority1. ED has the authority to waive

accountability provisions of Title I, Part A2. It is unclear if Secretary can condition a

waiver on other action(s) not required by law

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Requested AYP Flexibility – Not the Waiver PackageArkansas – DeniedCalifornia – Requested freeze of sanctions and identification – No responseGeorgia – Requested flexibility in accountability – No responseIdaho – Granted (not a waiver)Kansas – DeniedKentucky – Requested use of own accountability model –No response

CEP website: http://www.cep-dc.org/page.cfm?FloatingPageID=22as of February 11, 2012

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Requested AYP Flexibility – Not the Waiver Package (cont.)Michigan – Requested SIG flexibility – Denied; Other requests pendingMinnesota – PendingMontana – Granted (not a waiver)South Dakota – Granted (not a waiver)Tennessee – RequestedUtah – Granted

CEP website: http://www.cep-dc.org/page.cfm?FloatingPageID=22as of February 11, 2012

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ED Announcementon Waivers

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Waivers ED makes the announcement September 23, 2011 Letter to ChiefsNCLB became a barrier to reform:

opportunity to request flexibilityStateLEASchoolshttp://www2.ed.gov/policy/gen/guid/secletter/110923.html

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LetterFlexibility in exchange for rigorous

and comprehensive state plansImprove educational outcomesClose achievement gapsIncrease equityImprove instruction

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“ESEA Flexibility” September 23, 2011

10 provisions subject to waiver1. 2013-2014 timeline –

develop new ambitious AMO’s2. School improvement consequences: LEA not

required to take currently required improvement actions in Title I Schools

3. LEA improvement identification: not required to identify for improvement LEA that fails 2 consecutive years

4. Rural LEAs Small Rural School Achievement or Rural and

Low Income program Flexibility regardless of AYP status

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Waivers5. Schoolwide

Operate as schoolwide regardless of 40% poverty threshold if SEA identified as a priority or focus

school with interventions consistent with turnaround principles

6. School Improvement 1003a funds to serve any priority or focus

school if SEA determines school in need of support

7. Reward Schools Rewards to any reward school if the SEA

determines appropriate

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Waivers8. HQT improvement plans

LEA that does not meet HQT no longer must develop an improvement plan Flexibility in use of Title I and II funds

LEA-SEA develop “more meaningful” evaluation and support systems which eventually will satisfy the HQT requirement

SEA still must ensure poor and minority children not taught at higher rates by inexperienced, unqualified or out-of-field teachers

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Waivers9. Transferability

Up to 100%, same programs10. SIG

1003g awards for any priority school

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Waivers

Optional #1121st Century Community Learning

Centers support expanded learning time during school day

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“In Exchange for…”Must meet 4 principles1. College and Career Ready Standards –

Develop and Implement Reading/Language Arts Math Aligned assessments measuring

growth ELP assessment aligned to #1

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2. State Developed Differentiated Recognition, Accountability and Support Must develop system of Differentiated

Recognition, Accountability and Support All LEAs All Title I Schools

Must consider Reading, Language Arts, and Math

All students All subgroups Graduation Rates

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• School Performance over time• New AMOs (ambitious)State LEAsSchoolsSubgroups

• Incentives recognitions• Dramatic systemic changes in lowest

performing schools

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3. Effective Instruction/Leadership• Commit to develop/adopt pilot

and implement Teacher/principal evaluation

systems Student Growth = “Significant

Factor”

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4. Reduce duplication and unnecessary burden

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Definitions• Focus Schools

Title I school contributing to achievement gap

Largest gap or Subgroups with low achievement

– or low high school graduation rate

• At least 10% of Title I Schools in State

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Definitions• Priority SchoolsLowest 5% of schools based on “all

students” orTitle I participating or eligible high

school orGraduation rate under 60% or Tier I or II SIG utilizing intervention

model

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Definitions5. Reward Schools

• Highest performing “all students” or

• High progress

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Timelines• Notify of Intent to Apply by

October 12, 20111. Submit November 14, 2011; Flexibility by end of 2011-2012

2. February 28, 2012 26 States, DC applied New window: September 6, 2012

May include LEAs Unhappy Chiefs

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Waivers Granted1. Colorado2. Minnesota3. Oklahoma4. Kentucky5. Tennessee6. Florida7. Massachusetts8. New Jersey9. Georgia10. Indiana11. New Mexico

GrantedGrantedGrantedGrantedGrantedGrantedGrantedGrantedGrantedGrantedDenied Granted

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Key Findings in Initial 11 Requests Greater coordination – federal – state

accountability systems 10/11 adopted common core Greater complexity in achievement targets

multiple performance levels 8/11 based accountability on 2 groups

All Students Disadvantaged Students – (Note: Modified in

review process) 9/11 Eliminate Choice/SES

Source: Center on Education Policy (CEP) December 20, 2011 Report

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Waiver Granted with ConditionsFlorida: Inclusion policies don’t ensure all

(SWD, ELL) included in accountabilityUnresolved SIG monitoring report

GeorgiaMust study, refine and submit final

versions of College-and Career-Ready Performance Index

OklahomaMust finalize and submit administrative

rules for A-F school grading system

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Waiver Applications Filed February 28 Arkansas Arizona Connecticut Delaware Iowa Idaho Illinois Kansas Louisiana Maryland

Michigan Missouri Mississippi North Carolina Nevada New York Ohio Oregon Rhode Island South Carolina

South Dakota Utah Vermont Virginia Washington Wisconsin Washington, DC

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Kline: Response to Waiver Announcement September 26, 2011 Press Release: House

Education & Workforce Committee Waiver Route Bypasses Congress Unprecedented Authority to Secretary Will Delay Reauthorization

Senator Lamar Alexander (R-TN) (Former U.S. Education Secretary) Fix NCLB Through Reauthorization - (Not

Waivers)

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Not So Happy Waiver ReactionsCalifornia, Tom Torlakson “…thorough reassessment of the federal role

in education, not merely the substitution of one set of inflexible requirements for another…”

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Not So Happy Waiver ReactionsPennsylvania, Ron Tomalis “…the offer doesn’t make sense”

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Not So Happy Waiver ReactionsTexas, Spokeswoman Debbie Ratcliffe “…we’re worried about the strings

attached…” “We prefer State control.”

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Not So Happy Waiver ReactionsMaine, New Hampshire – Stephen Bowen,

Virginia Barry “…the current timeline and waiver guidelines

will not work in New Hampshire and Maine…” Intend to develop new system and apply for

9401 waiver

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New Waiver #12No AYP determination for LEAs

or Schools

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New Waiver #13LEA may serve Title I eligible

priority high school with graduation rate under 60% without regard for rank and serve???

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New Waiver Not Numbered11-12 assessment use 10-11 AMOsFor waiver intent

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ED to Monitor Waivers SY 12-13Supplement Title I Monitoring

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House•Fully into 2012 election year•Chairman Kline’s initial piecemeal approach –five small bills

•Eliminating some federal education programs (passed Committee)•Promoting Charter expansion and replication (passed)

•Only one of these bills with bipartisan support•Increasing funding flexibility (passed Committee)•Student Success Act, H.R. 3989

•Passed Committee on February 28, 2012•Encouraging Innovation and Effective Teachers Act, H.R. 3990

•Passed Committee on February 28, 2012

A Bill That Will Not Become Law But May Influence the Debate

Chairman Kline Flexibility Bill (H.R. 2445) (passed committee July 13, 2011)

“State and Local Funding Flexibility Act” Creates essentially unlimited transferability Unlikely to become law However all reauthorizations add some

flexibility.-NCLB ED Flex Transferability State Flex, Local Flex

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Opposition to Flexibility Bill George Miller- Violates Civil Rights intent

of ESEA and Brown vs. Board of Education Center for American Progress Education Trust La Raza NEA AFT Special Ed Groups

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Support for Flexibility Bill American Association of School

Administrators National School Boards Association

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Student Success Act (H.R. 3989) and Encouraging Innovation and Effective Teachers Act (H.R. 3990)

• Eliminates AYP – Returns responsibility to States• Eliminates mandatory interventions• Retains SEA/LEA Report Cards• Allows Greater Transferability• Removes MOE • Eliminates 40% threshold for SW• Requires teacher and principal evaluations

with student achievement as significant factor

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H.R. 3989 and H.R. 3990 - Response– “…step in the right direction…” – But concerns with:

• Lost focus on disaggregation of subgroup data• MOE elimination• Expanded vouchers• Diminished focus on PD• Weak charter accountability• Implementation of teacher evaluations

• Many groups support• CCSSO, NSBA, AASA

• Highly critical reaction from Ranking Member Miller, civil rights groups, U.S. Chamber of Commerce

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H.R. 3989 and H.R. 3990 – What the Future Holds Future not so bright Strictly partisan legislation

And some Republicans wary of certain provisions

Not a priority for House Republicans Focus on debt, 2012 elections

Harkin has said he won’t move his Senate bill without passage of a bipartisan bill in the House

Quality Charter Schools Act Boost Expansion / Replication of

Quality Charters House Already Passed = Likelihood of Passage

HIGH

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No more AYP or 100% proficiency goalState-designed assessments

and accountability systemsNo longer label schools passing

or “in need of improvement”Federally mandated focus on

bottom 5% of schoolsCodifies Race to the Top, Invest

in Innovation

The Harkin Bill: Key Changes58

More flexibility and control at State level Fewer specified areas of accountability Includes the 4 models for school improvement (plus

three others) Defines “college and career readiness” and makes it

the focus of State-driven accountability Changes to comparability (looking at expenditures

down to school site level)

The Harkin Bill: Other Significant Provisions

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Harkin Bill: Conflict and Quick Capitulation …er… Resolution with Teachers

1st Draft conditioned Title II funding on implementation of teacher/principal evaluations

Unions and others came out strongly against this provision

Original draft modified to make evaluations suggested, but not required

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Hearing in Committee November 8th

Place on Senate CalendarDebate on the Senate

Floor, amend, and voteConference and/or

negotiations with House

The Harkin Bill: What’s Next

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Harkin Bill Reaction October 19, 2011 Civil Rights Groups, Business Groups, State

Education Officials, Education Advocates “We cannot support the bill at this time.”

Weak accountability provisions Inadequate protections for

SWD Low income Students of color ELL Migrants

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Secretary Duncan on Reauthorization:Freeze Title I

IDEA

Increase Competitive Program $

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familiar with your particular circumstances.

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