ED Secretary Duncan announces plan to override NCLB accountability standards by granting states waivers

Secretary of Education Arne Duncan has announced that he is unilaterally overriding the centerpiece accountability provision of the No Child Left Behind Act (NCLB) that requires students to be 100% proficient in math and reading by 2014, reports the New York Times. Duncan stated that he was revising NCLB requirements because of Congress’s failure to act. He stressed that waivers of NCLB’s proficiency requirements would be for states that have adopted their own testing and accountability programs and are making other strides toward better schools.

Melody Barnes, director of President Obama’s White House Domestic Policy Council, who joined Duncan in the announcement, said that all states would be encouraged to apply for waivers from the law’s accountability provisions, but that only states the administration believed were carrying out ambitious school improvement initiatives would get them. “This is not a pass on accountability,” Ms. Barnes said. “There will be a high bar for states seeking flexibility within the law.”

Currently under NCLB, every school is given the equivalent of a pass-fail report card each year, an evaluation that administration officials say fails to differentiate among chaotic schools in chronic failure, schools that are helping low-scoring students improve, and high-performing suburban schools that nonetheless appear to be neglecting some low-scoring students. Last year, about 38,000 of the nation’s 100,000 public schools fell short of their test-score targets under NCLB, and Mr. Duncan has predicted that number would rise to 80,000 this year.

Although critics have dismissed Duncan’s predictions as exaggerated,  a huge number of schools are falling short under NCLB’s school rating system. For example, 89% of Florida’s public schools missed federal testing targets, even though 58% of Florida schools earned an A under the state’s own well-regarded grading system.

Rep. John Kline (R-MN), chairman of the House education committee, has questioned Duncan’s legal authority to override NCLB. Citing provisions of NCLB, Duncan argues the law itself gives the education secretary broad waiver powers. In response,  Kline said, “I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine” efforts by Congress to rewrite the law.

Kline’s committee has yet to produce any bills rewriting the law’s crucial school accountability and teacher effectiveness provisions. Sen. Tom Harkin (D-IA), chairman of the Senate education committee, on the other hand, said he understood why Mr. Duncan was pursuing the waiver plan, since “it is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything.”

In their joint announcement, Duncan and Barnes said the U.S. Department of Education (ED) would issue guidelines next month inviting states to apply for the waivers. For a waiver to be approved, they said, states would need to show that they were adopting higher standards under which high school students were “college- and career-ready” at graduation, were working to improve teacher effectiveness and evaluation systems based on student test scores and other measures, were overhauling the lowest-performing schools, and were adopting locally designed school accountability systems to replace No Child’s pass-fail system.

Those requirements match the criteria the administration used last year in picking winning states in its two-stage Race to the Top grant competition. Ms. Barnes said states would not be competing against one another with their waiver applications.

Critics of the plan, however, expressed unhappiness with it. ”It sounds like they’re trying to do a backdoor Round 3 of Race to the Top, and that’s astonishing,” said Frederick Hess of the American Enterprise Institute. He called Mr. Duncan’s plan “a dramatically broad reading of executive authority.”

Meanwhile, the plan appears likely to gain broad support from state education officials. According to Gene Wilhoit, executive director of the Council of Chief State School Officers, more than a dozen states have already asked the department for changes to their No Child school accountability plans, or are about to do so. He also said, “Many states feel that we need major changes in the law, because it’s identifying such an outlandish number of schools that it’s losing credibility.”

Source: New York Times, 8/8/11, By Sam Dillon

[Editor's Note: Following Secretary Duncan's NCLB waiver announcement, on August 9, 2011, Taylor Dobbs reporting in VTDigger.org said Gov. Peter Shumlin would be seeking a waiver for Vermont schools from NCLB's testing mandates. The article reported that the governor has asked the Vermont State Board of Education (VBOE) to work with his administration to draft a formal request to Duncan in the next 20 days. VBOE Chairwoman Fayneese Millerjoned emphasized the need for the state to implement a “measurement system,” as opposed to a single test. A system of diagnostic tools would be more useful, she said, than statistics that don’t represent the full range of a student’s performance.

On August 10, 2011, the Associated Press (AP) reported in the Wall Street Journal that Connecticut is contemplating requesting an NCLB waiver. According to AP, Connecticut State Board of Education Chairman Allan Taylor said the NCLB requirement for math and reading proficiency from every student by 2014 is not possible, at least not without shifting huge amounts of money away from other necessities. "Ultimately everybody's going to need one because ultimately nobody can comply with the law," Taylor said of the waivers.

Also on August 10, 2011, NSBA Executive Director Anne Bryant andAmerican Association of School Administrators (AASA) Executive Director Daniel Domenech sent a letter to Secretary Duncan. In the letter, AASA and NSBA stated their agreement with the three areas proposed for conditional regulatory relief within Duncan's plan: (1) the 2014 timeline, (2) the 100% proficiency requirement, and (3) highly qualified teacher regulations. NSBA and AASA stated they do not support, however, the conditional nature of the waivers:

"State and local education agencies are not at all responsible for reauthorizing the federal statute, and as such should not have to jump through hoops to get relief from specific provisions widely recognized as broken and in need of improvement. We find the conditional nature of the waivers counterintuitive to the promise about getting relief to the nation’s schools, and believe that our proposal is a much more direct and efficient way of both providing schools relief and keeping the pressure on Congress to finish their reauthorization work."

Some states have already asked ED for waivers. In July 2011, Legal Clips summarized an Associated Press (AP) article in Education Week reporting that Gov. Bill Haslam had announced that Tennessee is seeking a waiver from ED to use its revamped education standards to measure schools instead of those mandated by NCLB. According to the governor and state Education Commissioner Kevin Huffman, the federal standards no longer serve the interest of education reform in Tennessee.

In the editor's note accompanying the AP article summary, Legal Clips also noted several stories covering states' requests for waivers from NCLB requirements.  A Detroit Free Press article reported that the Michigan Department of Education (MDE) is asking ED to waive for 10 years NCLB's rules that require 100% of students be proficient on state exams by 2014. MDE basis its waiver request on the state's increased standard for passage of state exams, making it tougher for students to be considered proficient. A July 2011 AP article reported that the Idaho State Board of Education (IBOE) signed off on Idaho's plan to reject the latest requirements for determining school progress under NCLB.  The Argus Leader reported that South Dakota Education Secretary Melody Schopp had announced that the state would defy NCLB by freezing annual Dakota STEP performance targets at their 2009-10 levels. Links to both the AP article on Idaho and the Argus Leader article on South Dakota are contained in the editor's note.]

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