This broad-scale ESEA waiver initiative is ushering in a handful of new challenges, which may or may not be worth the consequences from the lessons learned along the way. Forget for the moment the complications of reauthorizing new legislation when 33 States are already doing something different. That’s a good assignment for first year law and policy students. These new systems are far more complicated – some reflecting multiple formulas and approaches to grade schools and to identify where to focus or prioritize. The complexity means that it will be quite difficult to understand the differences in school performance – this complexity also makes it easier to hide real problems of students not learning. Transparency is not a description that could be given to most of these systems. At a time when States are moving to common expectations of how well students should read and do math, these waivers introduce new levels of disparity – within any given State, there may be

• Different goals for students based on race, poverty, and special need
• Different responses to schools that are graded the same, but fall on either side of an arbitrary line designed to help focus or prioritize
• Different systems for schools depending on the number of low-income students in the school

And, it is the rare State that continues providing federally-supported choice or additional tutoring.

In most states, the pressure is on for 15% of schools. The rest are graded for their performance but these grades are just for reporting purposes; there is no real expectation for action. The numbers of children in the remaining 85% no longer have the power of federal attention to bring about change. As these systems are implemented, what will we learn about these schools? And, what will it mean for students from low-income families, with disabilities, or from non-English speaking households?

In reviewing the State waivers from NCLB and the new accountability plans, it is worth remembering what NCLB (passed with overwhelming bipartisan support) requires of State accountability systems – assessments in reading and mathematics in grades 3-8 and once in high school, science assessments in the grade spans, an annual review of student groups and their achievement on those assessments, a goal of all students on grade level (with very clear allowances for progress toward that 100% goal, a growth measure, referred to as ‘safe harbor’), consequences for schools when those goals aren’t met, and options for students who are in chronically under-performing schools.

What these new accountability systems did really well was identify groups of students who needed more help to learn critical reading and mathematics skills. And, NCLB brought much needed attention to a broader group of students – students with disabilities, students learning English, and students who were struggling in schools where you wouldn’t have expected low performance. From this attention, schools were required to act, and provide students options. Most importantly, NCLB delivered results – achievement increased over the last decade, and achievement gaps began to shrink. This, above all else, is the real legacy of NCLB.

When the law was first passed, most States did not have the technological capacity to calculate more sophisticated analyses than those envisioned by NCLB. Many more States do now – and so, the waivers do allow States to capitalize on that expanded knowledge and capacity. These new systems will potentially generate a more nuanced understanding of school performance and support targeted responses to underperformance. States, through these waivers, are now experimenting with new systems of accountability and interventions, and hopefully continuing to help more students learn critical reading and math skills. Along the way, it would be great if a few States developed systems that did this well.

The Bush Institute has begun analyzing these new accountability plans to identify good examples of accountability, and call out the problems. Over time, we’ll be reviewing how these systems unfold and what that means for students. It is our hope that these systems will take advantage of all that has been learned over the past decade, without making a mockery of the high ideals of helping every student achieve.

So far the U.S. Department of Education has not taken advantage of the waiver process to push states to improve their schools’ early education programs. Funding is one of the areas of flexibility afforded to states granted a waiver. States and school districts can repurpose funding allocated by NCLB for tutoring and choice programs to other areas. The Department of Education could have urged states, for instance, to ask school districts to use these funds to work with pre-kindergarten programs to help smooth transitions into kindergarten. States can also apply for flexibility in using 21st Century Community Learning Centers dollars. This grant program currently funds out-of-school programs for high-need children. Under the waivers, however, funds could also be used to support expanded learning time during the school day, providing much-needed additional instructional support to the children who need it most. The department could have encouraged states to use these funds to extend half-day kindergarten programs to a full day.

Yet priorities like those above were not included in the Administration’s waiver guidelines. While states are not prohibited from building better early learning systems as a means for improving student learning and school quality, the Department of Education does not encourage states to do so. For example, nothing in the waiver process prohibits states from building teacher and principal evaluation systems that would include pre-K teachers or from aligning “college-and-career ready” standards with state preschool standards or from developing professional development that combines pre-K teachers and their K-12 peers. But many states need a push to make investments in early learning, and guidance on how to do it well.

This is a missed opportunity for both the U.S. Department of Education and state agencies. Given the benefits that accrue from access to high-quality pre-K, full-day kindergarten and better instruction in the early grades, it is a shame that the waiver process isn’t helping to move school districts in this direction.

While I would have liked to see the department use the waivers to advance its early learning agenda, at the same time, I question the impact of the reforms that states are agreeing to put into place. Knowing that ESEA reauthorization is inevitable and that its passage will bring new federal requirements, how committed will states really be to seeing their waiver promises to fruition? Will states drag their feet on implementing certain reforms? Will they abandon their reforms? We’ll have to wait and see.

It should come as no surprise that so many states are requesting waivers from the provisions of No Child Left Behind. For years, educators have realized that the law’s emphasis on standardized testing was having a negative impact on students.

States sought waivers to relieve the impact of unintended consequences such as the narrowing of school curricula. They also wanted to remove the threat of NCLB sanctions on schools that failed to meet unattainable AYP requirements.

States that received a waiver now have an opportunity to make dramatic changes in their accountability systems, and to develop and implement different and better ways to help students learn, graduate, and move on to meaningful postsecondary opportunities. They can address the range of student needs rather than narrowing the focus of school to standardized tests in a few subjects. Successful schools will be recognized, and struggling schools will receive more flexibility and targeted support for their school improvement efforts.

We must learn from the mistakes of NCLB and correct the unintended consequences, as well as the unrealistic requirements. But we must not abandon the commitment to every child. We must remember the original goal of ESEA - to foster educational equity for all students - and keep working to achieve that. Every student deserves a great public school, a great team of educators, and access to a broad, rigorous, relevant, and engaging curriculum.

The likeliest consequence of the waivers will be - indeed already is -- the creation of highly inaccurate, cumbersome educator "evaluation" systems driven by students' test scores. Even if the test scores are less than half the weight, functionally they will control the evaluations. This means much more pressure to teach the test, so we will see more of that - and the resulting score inflation. In many states we will see lots more testing as states decide how to judge all teachers - every subject, every grade, every year - with those test scores. Alternatively, phys ed and art teachers will be evaluated by math and reading scores, etc. Hard to know which is crazier and will cause more damage. While evaluating educators seems a reasonable thing to do, and done well seems to improve teaching (and even counsel some out), we lack evidence that teacher evaluation will be worth the large sums of money and time it will command, especially in the bureaucratic ways it is being imposed.

Adding more testing will not solve the issue of the achievement gap. Most of that gap cannot be solved by schools alone, though many schools can do better and likely would with adequate resources and support. Narrowing instructional practices in the drive to raise scores won't enhance real learning even if some test scores do rise. Most state gains are largely inflation, as evidence by the fact that since the start of NCLB gains on NAEP have slowed under NCLB for almost all groups and grades in both subjects. The NAEP score gaps closed most markedly long before test-driven schooling was common but desegregation remained at least somewhat on the table.

The supposed benefit of the waivers, escape from the irrational punishments exacted under NCLB for not making sufficient test score gains, may well benefit some schools, especially in the suburbs. Whether those schools will revert to ignoring students with disabilities or English language learners remains to be seen (though paying attention to them too often took the form of intensified test prep). But many schools will still be subject to unproven governmental changes, mass firings and the like. Really weak schools that cannot improve even with resources and assistance should face serious interventions (see material at http://www.edaccountability.org), but the federal mandates are not the way to help.

We could go on. The best evidence on charters remains that on average they don't do as well as public schools, and Duncan repeating the mantra that they only want 'good' charters is pretty meaningless.

The waiver game, like Race to the Top, is fundamentally a continuation and modification of NCLB. Given that the Administration is getting most of what it wants by coercing and bribing states (many of whom are all too willing to go along), why should it actually want to reauthorize NCLB?

Until the federal government decides it actually wants to help improve education instead of pursuing its unproven, ideological nostrums, the federal government will continue to do grievous harm to children and the schools they attend. A wave of resolutions denouncing the damage caused by over-testing has swept Texas and Florida school boards and is beginning in other states as well. Perhaps that is the start of a tipping point that governments will have to listen to. (The National Resolution on High-Stakes Testing is at http://timeoutfromtesting.org/nationalresolution/.)

In May, the State of Connecticut celebrated being one of the early winners of a U.S. Department of Education NCLB waiver. Announcing the waiver recipients from Hartford, Education Secretary Arne Duncan called Connecticut’s application “one of the strongest and most creative and innovative” of the more than two dozen applications his department reviewed that round.

Securing that waiver was a clear indication that Connecticut had taken some important steps forward to improve its public schools and had reversed a dubious trend of faring poorly in federal applications in the Race to the Top era. After decades of denying an achievement gap existed, Connecticut finally took key steps to break the chains of the status quo and rebuild what was once a world-class public education system. For example, Connecticut will implement an educator evaluation system that focuses on student learning, establish a new school and district accountability system, and accelerate state and district efforts to turn around our lowest performing schools.

At the time, I offered some words of caution surrounding the waiver, noting, “We need to stay the course and aggressively pursue our end goal. The reforms enacted through S.B. 458 [now Public Act 12-116] must be implemented effectively and with fidelity. We must maintain the integrity of the original teacher and principal evaluation framework as approved by the State Board of Education. And we must ensure that the reforms contained within the Commissioner’s Network are allowed to take shape and improve outcomes for the kids most in need.”

Since the announcement of our waiver, Connecticut released its latest round of state assessment scores. We saw only incremental progress in closing our worst-in-the-nation achievement gaps, with some gaps, including those for ELL students, actually widening. Based on the gains of recent years, it will take between 40 and 60 years to close most of the state’s elementary school achievement gaps. At our current pace, it would take nearly 200 years to close Connecticut’s 10th grade Latino/Hispanic achievement gap. And it would take nearly 300 years to close our 10th grade African-American achievement gap. That means generations of children would continue to suffer. Unacceptable isn’t a strong enough word.

These gaps, and the current slow pace to close them, are incredibly important, particularly when one looks at the potential pitfalls that can come nationally as a result of the waivers. The waiver process has many states focused on their lowest-performing 15 percent of schools, and really only on those 15 percent.

Fortunately, Connecticut is not one of those states, with the Nutmeg State putting schools on a continuum based on absolute performance and growth at all performance levels - from below basic through advanced. But far too many states are taking the 15-percent path.

Yes, those lowest-performing schools deserve significant attention. They deserve increased and improved interventions. They demand exemplary educators and proven methods for instruction. They benefit from a jumpstart toward innovation and improvement. And they demand a greater level of scrutiny and accountability.

Our nation's performance struggles, though, do not reside solely in those bottom 15 percent of schools. That is why Connecticut is following an absolute performance model, and not the 15-percent path. In Connecticut, virtually all of our public schools have room for improvement. Low-income students. Latino students. African-American students. ELL students. White students. Virtually all of our disaggregated groups, even those in our wealthiest communities, show a need for improvement.

As a nation, we do not want to give the impression that we do not need to worry about 85 percent of our schools. It portrays the achievement gap issue or the student performance issue as one that only impacts our lowest performing 15 percent of schools, making it a niche issue and not one that should concern each and every parent, teacher, community leader, and policymaker across the state. We must all accept that 85 percent of our schools are not doing great, and that most schools can and should improve.

It is dangerous when we give folks the excuse that the achievement gap is “not an issue in my community.” Despite its faults, AYP was all inclusive. Accountability under the NCLB waiver needs to be as well, offering a system where we expect all schools, regardless of their zip code or neighborhood median income, to demonstrate progress is being made.

When nearly 40 percent of students can’t read at grade level by fourth grade, it isn’t a 15 percent issue. When a third of students drop out of high school, it isn’t a 15 percent issue. When 70 percent of Connecticut’s public high school graduates require remedial education in college, it isn’t a 15 percent issue.

We should be concerned with improving student performance for all children. We should demand the closing of achievement gaps at all schools and in all communities. We have established a social contract to ensure that all children have access to a high-quality public education. We need to honor that contract with all families, holding all schools – not just the bottom 15 percent – accountable for delivering it.

Merriam-Webster defines “waiver” as “the act of intentionally relinquishing or abandoning a known right, claim, or privilege.” (http://www.merriam-webster.com/dictionary/waiver)

The dictionary also offers a definition of “coerce:” (1) to restrain or dominate by force … (2) to compel to an act or choice … (3) to achieve by force or threat. (http://www.merriam-webster.com/dictionary/coerce)

With those definitions in mind, here’s how Joy Resmovits in the Huffington Post explained the U.S. Department of Education’s NCLB waiver process, which the Department refers to as NCLB “Flexibility:” “In exchange for the waivers, states had to agree to a plan that included parts of the Obama education agenda, which includes ‘college- and career-ready’ standards and grading teachers, using, in part, students’ standardized test scores.” (http://www.huffingtonpost.com/2012/07/19/no-child-left-behind-waiver_n_1684504.html)

To me, this “Flexibility” policy sounds a lot more like “coercion” than “waiver.” Even while it acknowledges that the current NCLB rules are unreasonable and harmful, Secretary Duncan’s Department is not simply waiving the offending provisions; it’s releasing states from those rules only when those states agree to adopt the Department’s favored policies.

Moreover, the Education Dept. hasn’t just dictated a set of state policies. It’s also dictating timelines and details, as discussed in this article concerning Georgia, Hawaii and Illinois: http://www.huffingtonpost.com/2012/08/10/no-child-left-behind-some_n_1764126.html.

This is an unusual and even Orwellian definition of “Flexibility” (no need to consult a dictionary on that one). And, in the wake of the spending clause (Medicaid) element of the Supreme Court’s Sebelius (Obamacare) ruling, there’s a slight chance that the coercion rises to the level of unconstitutionality.

Perhaps the most interesting situation arises from California, which educates more than 10 percent of the nation’s public school children. California has told the U.S. Department of Education that it does indeed want a waiver, but it has asked that any conditions reflect the state’s own reform direction and its own fiscal restraints. It has resisted in particular the demand that states adopt and implement particular types of new high-stakes evaluation systems for teachers and principals. As noted above, the Duncan Education Department is insisting that the evaluations be based in part on student test-score growth, which the state has stated would be expensive, “contentious and distract[ing] from more positive initiatives.” http://www.edsource.org/today/2012/california-may-seek-a-waiver-from-no-child-left-behind-law-on-its-own-terms/8384 and http://articles.latimes.com/2011/nov/12/local/la-me-no-child-20111112

Thus far, the Department of Education has not granted California a waiver. The Department certainly knows that NCLB is nonsensically sanctioning California’s schools (the law has forced the state to label 63% of Title I schools as “needing improvement”). But while encouraging the state to apply for “Flexibility” waivers, the Department has demonstrated very little if any actual flexibility in response to California’s desire to set its own reform path.

Bush’s NCLB and Obama’s reform agenda have a great deal in common. They both are grounded in test-based accountability and school choice principles that hope to use accountability, threats and market incentives to drive school reform. They both are also grounded in the idea that the federal government should coerce states to follow Washington DC’s favored policy agenda.

NCLB forced a complicated and extensive series of changes in U.S. schools, and not all of those changes were bad. Similarly, the Obama administration’s favored policies have had powerful effects on our schools, and some of these have (in my view) been positive. But neither set of changes has been well-grounded in research evidence and neither has, taken as a whole, moved schools in a beneficial direction. Maybe it’s time for some genuine flexibility?