NEW ESEA WAIVER FLEXIBILITY REQUIREMENTS

Leigh Manasevit, Esq.lmanasevit@bruman.comBrustein & Manasevit, PLLClmanasevit@bruman.com

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Faux Reauthorization: Waivers

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Problem with Waivers?

Lack of Transparency!!

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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 fundsComparabilitySupplement not supplantEquitable service to private school studentsParent involvementCivil 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 the % of low income students is less than 10% below the lowest eligible school

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The AYP Waiver Wars Failure to make AYP

Center for Education Policy Study http://www.cep-dc.org/cfcontent_file.cfm?Attachment=Usher_FourYearsAYPTrends_121610.pdf

Districts Failing AYP 2006 29% 2009 36%

Schools Failing AYP 2006 29% 2009 33% 2013- 2014 SY 100% proficient: Required

Causing sharp increases in target levels

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The AYP Waiver WarsSecretary Duncan:

82% of schools could fail AYP this year (10-11)

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The AYP Waiver WarsJune 23, 2011 Chairman Kline/ Chairman

Hunter to Secretary Duncan:“…the Departments proposal is cause for

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

for reforms [is] not authorized by Congress…”

July 6, 2011 Secretary 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 Waiver WarsApril 25, 2011 Montana to Secretary Duncan: “I am delaying the scheduled increase of the

… (AMOs).”

June 21, 2011 Idaho to Secretary 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 Secretary Duncan: “…[We] intend to hold our…AMO targets at

the 2009-2010 levels.”

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The AYP WarsJuly 1, 2011 Secretary Duncan response

to Montana:“Unfortunately, this action leaves the

Department no alternative but to pursue enforcement action.”

-Special Conditions-Possible withholding of Part A Funds

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The Peace Offerings August 15, 2011 Montana to Secretary Duncan:

“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…”

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

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Requested AYP FlexibilityArkansas – DeniedIdaho – Granted (not a waiver)Kansas – DeniedMichigan – Part Denied, Part PendingMinnesota – PendingMontana – Granted (not a waiver)South Dakota – Granted (not a waiver)Tennessee – RequestedUtah – Granted

CEP website: http://www.cep-dc.org/As of November 11, 2011

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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 A.2.It is unclear if Secretary can condition a waiver on other action(s) not required by law.

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ED Announcementon Waivers

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Waivers ED makes the big announcement September 23, 2011 Letter to Chiefs

NCLB became a barrier to reform: opportunity to request flexibility State LEA Schools

http://www2.ed.gov/policy/gen/guid/secletter/110923.html

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Letter (cont…) Flexibility in exchange for rigorous

and comprehensive State plans Improve educational outcomes Close achievement gaps Increase equity Improve instruction

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“ESEA Flexibility” September 23, 2011

10 provisions subject to waiver: (1 waiver-10 sections)1. 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 programs

10. SIG 1003g awards for any priority school

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Waivers Optional

21st Century Learning Centers support expanded learning time during school day

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States Intending to Request ESEA FlexibilityAs of November 8, 2011

November 14, 2011 Colorado Florida Georgia Indiana Kentucky Massachusetts

Mid-February, 2012 Arkansas Arizona Connecticut D.C. Delaware Hawaii

The following is a list of States that have indicated they intend to request ESEA flexibility. This list is current as of the date indicated above; the Department will periodically update this list to reflect changes after that date. Please note that a State’s indication of its intent to request is not binding. States are listed in alphabetical order.

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States Intending to Request ESEA Flexibility (cont.)As of November 8, 2011

November 14, 2011 Minnesota New Jersey New Mexico Oklahoma Tennessee Vermont

Mid-February, 2012 Idaho Illinois Iowa Kansas Maine Maryland

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States Intending to Request ESEA FlexibilityAs of November 8, 2011

Mid-February, 2012 (cont.)

Michigan Mississippi Missouri Nevada New

Hampshire New York North Carolina Ohio

Oregon Puerto Rico Rhode Island South Carolina South Dakota Utah Virginia Washington Wisconsin

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“In Exchange for…”Must meet 4 principles1. College 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 system of 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, Math All students All subgroups Graduation Rates Eliminates 2% alternate assessment based on

modified achievement standards

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• School Performance over time• New AMOs (ambitious)

State LEAs Schools Subgroups

• Incentive 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 Schools

Lowest 5% of schools based on “all students” or

Title I participating or eligible high school or Graduation 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 Oct 12, 2011

Submit November 14, 2011; December Peer Review or Mid February, Spring 2012 Review

Flexibility by end of 2011-2012

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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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