USDE offers new flexibility from NCLB/ESEA requirements

After public discussion for some time now, the Obama Administration has released final details about its promise to grant waivers from some key provisions of the federal No Child Left Behind (NCLB) Act (also known as the Elementary and Secondary Education Act - ESEA) to states meeting certain requirements. Spurred in part by the looming 2014 NCLB/ESEA deadline by which 100 percent of students in all states must be proficient in math and reading, and by Congress lagging behind in reauthorizing the federal law, U.S. Secretary of Education Arne Duncan announced in early August that the administration would use its executive authority to grant waivers of the law. Although some members of Congress publicly questioned the administration's authority to bypass Congress in changing the NCLB/ESEA requirements, the administration has proceeded with its plan and the waivers are now available.  

Unfortunately, as in the administration's past education initiatives, like the Race to the Top (RTTT) grant program, this new waiver program comes with strings attached, many of them remarkably similar to the RTTT grant requirements. Included among them are requirements for states and school districts to develop and implement teacher evaluation systems based in significant part on student growth on standardized tests for all students in tested subjects, and for students in non-tested subjects on rigorous alternative measures of student learning and performance that are comparable across schools. This requirement was a major factor in TCTA's decision to support Gov. Rick Perry in declining to pursue RTTT funds early last year. Perry's chief objection to the RTTT grant centered on its requirement that states participate in a consortium of states to develop and adopt common curriculum standards and common assessments. While 48 states had already joined a consortium (called the Common Core initiative) to do so, Texas and Alaska  did not. Under the new waiver program, a state must adopt college- and career-ready standards that are either common to a significant number of states; or standards that are approved by a state network of institutions of higher education, which must certify that students who meet the standards will not need remedial course work at the postsecondary level. Accordingly, it is unclear at this point whether Texas will apply for the waiver.

States must notify the USDE of their intention to apply for the waivers by Oct. 12, 2011, with the first round of requests due by Nov. 14, 2011 for December peer review; after that, the next round of requests will be due by mid-February 2012 for a spring peer review.

In order to assist members in better understanding the implications of the new waiver program, TCTA has compiled a Q&A below regarding key provisions of the program.  TCTA will continue to inform members of developments as they occur.

Q&A on NCLB waivers

What entities can request waivers?

A state educational agency (state) may request flexibility, on its own behalf and on behalf of its LEAs (school districts).

What is the timeline for applying for a waiver?

In order to provide flexibility to states by the end of the 2011-12 school year, there are two windows in which a state may submit its request:

  • By Nov. 14, 2011 for December peer review
  • By mid-February 2012 for a spring 2012 review

An additional opportunity will follow the conclusion of the 2011-12 school year.

States should notify the USDE by Oct.12, 2011, of their intent to request NCLB/ESEA flexibility, specifying the submission window in which they intend to submit their request.

What is the length of waivers?

Waivers will run through the end of the 2013-14 school year. A state will be permitted to request an extension of the initial period of this flexibility prior to the start of the 2014-15 school year unless this flexibility is superseded by reauthorization of the NCLB/ESEA.

What constitutes a high-quality waiver request?

A high-quality request is demonstrated as follows:

  1. if a state has already met a principle and provides a description of how it has done so, including evidence as required; and
  2. if a state has not yet met a principle and describes how it will meet the principle on the required timelines, including any progress to date.  

For example, a state that has not adopted minimum guidelines for local teacher and principal evaluation and support systems by the time it submits its request for the flexibility will need to provide a plan demonstrating that it will do so by the end of the 2011-12 school year.  

What provisions of NCLB/ESEA will be waived/what flexibility will states/school districts receive with these waivers?

  1. Flexibility regarding the 2013-14 timeline for determining Adequate Yearly Progress (AYP): A state would no longer need to follow the procedures in NCLB/ESEA for setting annual measurable objectives (AMOs) to use in determining AYP.  Instead, a state would have flexibility to develop new ambitious but achievable AMOs in reading/language arts and mathematics in order to provide meaningful goals that will be used to guide support and improvement efforts for the state, local educational agencies (school districts), schools, and student subgroups.
  2. Flexibility in implementation of school improvement requirements: A school district would no longer be required to comply with the requirements in NCLB/ESEA to identify for improvement, corrective action, or restructuring, as appropriate, its Title I schools that fail, for two consecutive years or more, to make AYP, and neither the school district nor its schools would be required to take currently required improvement actions; however, a state may still require or permit a school district to take such actions. A school district would also be exempt from all administrative and reporting requirements related to school improvement under current law.
  3. Flexibility in implementation of school district improvement requirements: A state would no longer be required to comply with the requirements in NCLB/ESEA to identify for improvement or corrective action, as appropriate, a school district that, for two consecutive years or more, fails to make AYP, and neither the school district nor the state would be required to take currently required improvement actions. A school district would also be exempt from all associated administrative and reporting requirements related to school district improvement under current law.
  4. Flexibility for rural school districts: A school district that receives Small, Rural School Achievement Program funds or Rural and Low-Income School Program funds would have flexibility under NCLB/ESEA to use those funds for any authorized purpose regardless of the school district’s AYP status.
  5. Flexibility for schoolwide programs: A school district would have flexibility to operate a schoolwide program in a Title I school that does not meet the 40 percent poverty threshold in NCLB/ESEA if the state has identified the school as a priority school or a focus school, and the school district is implementing interventions consistent with the turnaround principles or interventions that are based on the needs of the students in the school and designed to enhance the entire educational program in the school, as appropriate.
  6. Flexibility to support school improvement: A state would have flexibility to allocate NCLB/ESEA school improvement funds to a school district in order to serve any priority or focus school, if the state determines such schools are most in need of additional support.
  7. Flexibility for reward schools: A state would have flexibility to use funds reserved under the NCLB/ESEA state academic achievement awards program to provide financial rewards to any reward school, if the state determines such schools are most appropriate for financial rewards.
  8. Flexibility regarding highly qualified teacher (HQT) improvement plans: A school district that does not meet its HQT targets would no longer have to develop an improvement plan under NCLB/ESEA and would have flexibility in how it uses its Title I and Title II funds. A state would be exempt from the requirements regarding its role in the implementation of these plans, including the requirement that it enter into agreements with school districts on the uses of funds and the requirement that it provide technical assistance to school districts on their plan. This flexibility would allow states and school districts to focus on developing and implementing more meaningful evaluation and support systems. A state would not be exempt from the requirement that it ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers; however, once more meaningful evaluation and support systems are in place, a state may use the results of such systems to meet that requirement.    
  9. Flexibility to transfer certain funds: A state and its school districts would have flexibility to transfer up to 100 percent of the funds received under the authorized programs designated in the NCLB/ESEA transferability of funds section among those programs and into Title I, Part A.  Moreover, to minimize burden at the state and local levels, the state would not be required to notify the USDE, and its participating school districts would not be required to notify the state prior to transferring funds.
  10. Flexibility to use school improvement grant (SIG) funds to support priority schools: A state would have flexibility to award SIG funds available under NCLB/ESEA to a school district to implement one of the four SIG models in any priority school.

Optional flexibility

In addition to its request for waivers of each of the requirements above, a state may wish to request flexibility through a waiver related to the following:

Flexibility in the use of  21st century community learning centers (21st CCLC) program funds:  A state would have flexibility under NCLB/ESEA to permit community learning centers that receive funds under the 21st CCLC program to use those funds to support expanded learning time during the school day in addition to activities during non-school hours or periods when school is not in session (i.e., before and after school or during summer recess).

What must a state commit to do in exchange for receiving these waivers?

To receive flexibility through the waivers outlined above, a state must submit a request that addresses each of the following four principles:

1.  College- and career-ready expectations for all students

To receive this flexibility, a state must demonstrate that it has college- and career-ready expectations for all students in the state by adopting college- and career-ready standards in at least reading/language arts and mathematics and transitioning to and implementing such standards statewide for all students and schools (by 2013-14); as well as developing and administering annual, statewide, aligned, high-quality assessments, and corresponding academic achievement standards, that measure student growth in at least grades 3-8 and at least once in high school (by 2014-15 if receive waiver extension).  A state must also support English Learners in reaching such standards by committing to adopt English language proficiency (ELP) standards that correspond to its college- and career-ready standards and that reflect the academic language skills necessary to access and meet the new college- and career-ready standards (by 2013-14), and committing to develop and administer aligned ELP assessments (by 2014-15 if receive waiver extension).  To ensure that its college- and career-ready standards are truly aligned with postsecondary expectations, and to provide information to parents and students about the college-readiness rates of local schools, a state must annually report to the public on college-going and college credit-accumulation rates for all students and student subgroups in each school district and each high school in the state (by 2014-15 if receive waiver extension).

Definitions for purposes of this section

College- and career-ready standards: College- and career-ready standards are content standards for kindergarten through 12th grade that build towards college and career readiness by the time of high school graduation. A state’s college- and career-ready standards must be either (1) standards that are common to a significant number of states; or (2) standards that are approved by a state network of institutions of higher education, which must certify that students who meet the standards will not need remedial course work at the postsecondary level.

Standards that are common to a significant number of states:  Standards that are common to a significant number of states means standards that are substantially identical across all states in a consortium that includes a significant number of states.  A state may supplement such standards with additional standards, provided that the additional standards do not exceed 15 percent of the state’s total standards for a content area.

High-quality assessment:  A high-quality assessment  is an assessment or a system of assessments that is valid, reliable, and fair for its intended purposes; and measures student knowledge and skills against college- and career-ready standards in a way that:

  • covers the full range of those standards, including standards against which student achievement has traditionally been difficult to measure;
  • as appropriate, elicits complex student demonstrations or applications of knowledge and skills;
  • provides an accurate measure of student achievement across the full performance continuum, including for high- and low-achieving students;
  • provides an accurate measure of student growth over a full academic year or course;
  • produces student achievement data and student growth data that can be used to determine whether individual students are college and career ready or on track to being college and career ready;
  • assesses all students, including English Learners and students with disabilities;
  • provides for alternate assessments based on grade-level academic achievement standards or alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities; and
  • produces data, including student achievement data and student growth data, that can be used to inform: determinations of school effectiveness for purposes of accountability under Title I; determinations of individual principal and teacher effectiveness for purposes of evaluation; determinations of principal and teacher professional development and support needs; and teaching, learning, and program improvement.

Student growth: Student growth  is the change in student achievement for an individual student between two or more points in time. For the purpose of this definition, student achievement means:

  • For grades and subjects in which assessments are required under NCLB/ESEA: (1) a student’s score on such assessments and may include (2) other measures of student learning, such as those described in the second bullet, provided they are rigorous and comparable across schools within a school district.
  • For grades and subjects in which assessments are not required under NCLB/ESEA: alternative measures of student learning and performance such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; student learning objectives; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools within a school district.

2.   State-developed differentiated recognition, accountability, and support

The state’s system must, at a minimum:

  • Set new ambitious but achievable AMOs in at least reading/language arts and mathematics for the state and all school districts, schools, and subgroups, that provide meaningful goals and are used to guide support and improvement efforts (states may apply new AMOs to AYP determinations beginning with 2011-12 assessment results).
  • Provide incentives and recognition for success on an annual basis by publicly recognizing and, if possible, rewarding Title I schools making the most progress or having the highest performance as reward schools.
  • Effect dramatic, systemic change in the lowest-performing schools by publicly identifying priority schools and ensuring that each school district with one or more of these schools implements, for three years, meaningful interventions aligned with the turnaround principles in each of these schools (by 2012-13).  The state must also develop criteria to determine when a school that is making significant progress in improving student achievement exits priority status.
  • Work to close achievement gaps by publicly identifying Title I schools with the greatest achievement gaps, or in which subgroups are furthest behind, as focus schools  and ensuring that each school district implements interventions, which may include tutoring and public school choice, in each of these schools based on reviews of the specific academic needs of the school and its students (by 2012-13). The state must also develop criteria to determine when a school that is making significant progress in improving student achievement and narrowing achievement gaps exits focus status.   
  • Provide incentives and supports to ensure continuous improvement in other Title I schools that, based on the state’s new AMOs and other measures, are not making progress in improving student achievement and narrowing achievement gaps.
  • Build state, school district, and school capacity to improve student learning in all schools and, in particular, in low-performing schools and schools with the largest achievement gaps (by 2012-13).  The state must provide timely and comprehensive monitoring of, and technical assistance for, school district implementation of interventions in priority and focus schools, and must hold school districts accountable for improving school and student performance, particularly for turning around their priority schools. The state and its school districts must also ensure sufficient support for implementation of interventions in priority schools, focus schools, and other Title I schools identified under the state’s differentiated recognition, accountability, and support system (including through leveraging funds the school district was previously required to reserve under NCLB/ESEA school improvement grant (SIG) funds, and other federal funds, as permitted, along with state and local resources).

Definitions for purposes of this section:

Turnaround principles:  Meaningful interventions designed to improve the academic achievement of students in priority schools must be aligned with all of the following turnaround principles and selected with family and community input:

  • providing strong leadership by:  (1) reviewing the performance of the current principal; (2) either replacing the principal if such a change is necessary to ensure strong and effective leadership, or demonstrating to the state that the current principal has a track record in improving achievement and has the ability to lead the turnaround effort; and (3) providing the principal with operational flexibility in the areas of scheduling, staff, curriculum, and budget;
  • ensuring that teachers are effective and able to improve instruction by:  (1) reviewing the quality of all staff and retaining only those who are determined to be effective and have the ability to be successful in the turnaround effort; (2) preventing ineffective teachers from transferring to these schools; and (3) providing job-embedded, ongoing professional development informed by the teacher evaluation and support systems and tied to teacher and student needs;
  • redesigning the school day, week, or year to include additional time for student learning and teacher collaboration;
  • strengthening the school’s instructional program based on student needs and ensuring that the instructional program is research-based, rigorous, and aligned with state academic content standards;
  • using data to inform instruction and for continuous improvement, including by providing time for collaboration on the use of data;
  • establishing a school environment that improves school safety and discipline and addressing other non-academic factors that impact student achievement, such as students’social, emotional, and health needs; and
  • providing ongoing mechanisms for family and community engagement.

A priority school that implements one of the four SIG models is implementing an intervention that satisfies the turnaround principles. A state may also implement interventions aligned with the turnaround principles as part of a statewide school turnaround strategy that allows for state takeover of schools or for transferring operational control of the school to another entity such as a recovery school district or other management organization.

3.   Supporting effective instruction and leadership

To receive this flexibility, a state and each school district must commit to develop, adopt, pilot, and implement, with the involvement of teachers and principals, teacher and principal evaluation and support systems that:  (1) will be used for continual improvement of instruction; (2) meaningfully differentiate performance using at least three performance levels; (3) use multiple valid measures in determining performance levels, including as a significant factor data on student growth for all students (including English Learners and students with disabilities), and other measures of professional practice (which may be gathered through multiple formats and sources, such as observations based on rigorous teacher performance standards, teacher portfolios, and student and parent surveys); (4) evaluate teachers and principals on a regular basis; (5) provide clear, timely, and useful feedback, including feedback that identifies needs and guides professional development; and (6) will be used to inform personnel decisions (by 2013-14).  A state must develop and adopt guidelines for these systems, and school districts must develop and implement teacher and principal evaluation and support systems that are consistent with the state’s guidelines. To ensure high-quality implementation, all teachers, principals, and evaluators should be trained on the evaluation system and their responsibilities in the evaluation system. As part of developing and implementing these evaluation and support systems, a state must also provide student growth data on current students and the students taught in the previous year to, at a minimum, teachers of reading/language arts and mathematics in grades in which the state administers assessments in those subjects in a manner that is timely and informs instructional programs. Once these evaluation and support systems are in place, a state may use data from these systems to meet the requirements of NCLB/ESEA that it ensure that poor and minority children are not taught at higher rates than other children by inexperienced, unqualified, or out-of-field teachers.  

In applying for the waiver, regarding developing and adopting guidelines for principal and teacher evaluation and support systems, if the state has not already developed any guidelines, the state must provide its plan to develop and adopt guidelines for local teacher and principal evaluation and support systems by the end of the 2011-12 school year; a description of the process the state will use to involve teachers and principals in the development of these guidelines; and an assurance that the state will submit to the USDE a copy of the guidelines that it will adopt by the end of the 2011-12 school year.

If the state has already developed and adopted one or more, but not all, guidelines, provide: a copy of any guidelines the state has adopted and an explanation of how these guidelines are likely to lead to the development of evaluation and support systems that improve student achievement and the quality of instruction for students; evidence of the adoption of the guidelines; the state's plan to develop and adopt the remaining guidelines for local teacher and principal evaluation and support systems by the end of the 2011-12 school year; a description of the process used to involve teachers and principals in the development of the adopted guidelines and the process to continue their involvement in developing any remaining guidelines; and an assurance that the state will submit to the USDE a copy of the remaining guidelines that it will adopt by the end of the 2011-12 school year.

If the state has developed and adopted all of the guidelines, provide: a copy of the guidelines the state has adopted and an explanation of how these guidelines are likely to lead to the development of evaluation and support systems that improve student achievement and the quality of instruction for students; evidence of the adoption of the guidelines; and a description of the process the state used to involve teachers and principals in the development of these guidelines.

4.   Reducing duplication and unnecessary burden

In order to provide an environment in which schools and school districts have the flexibility to focus on what’s best for students, a state should remove duplicative and burdensome reporting requirements that have little or no impact on student outcomes.  To receive the flexibility, a state must assure that it will evaluate and, based on that evaluation, revise its own administrative requirements to reduce duplication and unnecessary burden on school districts and schools.

Nothing in these principles shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded school or school district employees under federal, state, or local laws (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between such employees and their employers.

How are states required to go about developing their waiver requests?

Each state must engage diverse stakeholders and communities in the development of its request. Each state must provide a description of how the state meaningfully engaged and solicited input on its request from teachers and their representatives.  Each state must also provide a description of how the state meaningfully engaged and solicited input on its request from other diverse communities, such as students, parents, community-based organizations, civil rights organizations, organizations representing students with disabilities and English Learners, business organizations, and Indian tribes.  Finally, each state must provide an assurance that it has consulted with the State’s Committee of Practitioners regarding the information set forth in its request. 

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