Latest waiver pathway leaves NCLB altogether toothless

Latest waiver pathway leaves NCLB altogether toothless

(District of Columbia) Five years ago the Obama administration took the controversial step of unilaterally relieving states of key requirements of the No Child Left Behind Act in exchange for agreements to pursue a number of other educational goals.

In February, in a far less visible action but using the same disputed authority, the U.S. Department of Education issued new guidance that would seem to remove any remaining vestiges of federal accountability oversight altogether.

“The impression I get is that NCLB is being gutted by the waivers,” said Jack Jennings, a long-time education policy expert based in Washington D.C. and former president and CEO of the Center on Education Policy.

“The way I think of it, NCLB wasn’t very successful in its primary objective, which was to raise student achievement comprehensively,” said Jennings. “Therefore, what the waivers are doing is just cleaning up after bad policy.”

NCLB, which was considered a landmark agreement when approved in 2001, fell victim to its overly aggressive student and school performance ambitions.

The legislation was supposed to be reauthorized in 2007 and while there remains some optimism that a bipartisan proposal pending in the U.S. Senate will eventually win passage – there are at least as many skeptics that Congress will be able to come together on the plan now that the 2016 presidential campaign is underway.

The frustration with NCLB and gridlock around the Capitol prompted U.S. Education Secretary Arne Duncan to take matters into his own hands in 2011 when he invoked a provision of the law that gives him broad authority to waive any section of the No Child law itself.

Since then more than 40 states have been granted waivers under the 2011 program and those that haven’t – notably California – appear to be in line for similar relief as a result of the guidance issued by the department in February.

The guidance authorizes any state that has adopted “college and career-ready” content standards (also known as Common Core) and is currently administrating assessments aligned to those standards to simply ignore parts of federal law that would otherwise require states to assign school ratings based on the scores from the testing.

To states that would apply for this new form of relief, a waiver would be granted for the 2014-15 school year but unlike the waivers issued out of the 2011 program, no further conditions have been attached.

California, by far the largest state still operating under the mandates of NCLB, received news just last week that they had been granted the wavier under the new system. Specifically, the state has been given a pass on using the test scores this year for making accountability determinations for federal Annual Yearly Progress.

The new waiver option would seem to have been written with California in mind, given the headache the state has caused Duncan with its testing issues the past two years.

On the one hand, Gov. Jerry Brown has emerged as one of the nation’s strongest supporters of the Common Core State Standards. But as he has led California schools through the implementing process, Brown has also refused to comply with some key elements of federal law and, until now, had tenuous legal authority to do so.

Unable to comply with all the conditions of the 2011 waiver program – especially new teacher evaluation mandates – Brown nonetheless defied federal law last spring by failing to report student scores from pilot testing of the new assessment system tied to Common Core.

Duncan publicly rebuked Brown on the issue and threatened to withhold federal money – a showdown that the governor won when it became clear Duncan would not hurt disadvantaged students over the dispute.

This year, well ahead of the February guidance, the Brown administration was also preparing new report cards that would go out this summer to families of students who took the Common Core testing. Absent from the reports was any mention of whether student scores met “proficiency” standards – a benchmark well established by NCLB.

Observers say permission granted to Brown under the February guidance is an elegant solution that brings the nation’s most populous state – and key Common Core supporter – back in line.

“The U.S. Department of Education, in some sense, has been left out in the cold,” said Eric Hanushek, an economist specializing in education issues at Stanford's Hoover Institute. “They’ve been left with a law they are supposed to enforce; they’ve been trying to do that but it is very difficult.”

He noted that California appeared to be “playing the too-big-to-fail-card,” which was difficult for Duncan to respond to.

“There is some irony because the state has pursued Common Core while other states have been resisting it,” Hanushek said. “But at the same time, California has to pay attention to what kids are achieving and the problem is that embracing Common Core isn’t the same as having kids achieve. And it’s having kids achieve that’s the subject of NCLB.”

Jennings said that the overall impact of all of the NCLB waivers that Duncan has issued means the federal government is removing itself as arbiter of school performance accountability.

“I think each state will end up defining for itself what accountability will look like,” he said. “That’s what I’ve seen with the waivers I’ve read. There are no national standards – the waivers have allowed that and I think if reauthorization comes about, the legislation will confirm that.”

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