USED action contrary to state, federal law

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Education Commissioner Terry Holliday
Education Commissioner Terry Holliday

For readers who missed my blog last week, you may want to review the good news and bad news about No Child Left Behind (NCLB) waivers. In the blog I said, “I believe the current waiver process represents a major federal intrusion into the rights of each state to develop, implement, and manage the public education of the state.” This created quite a stir in certain circles.

Let me explain my thinking on that by first giving a little background on NCLB waivers. In the original No Child Left Behind Act (2001) language, Section 9401 (b) provides the following guidance:

REQUEST FOR WAIVER – (1) IN GENERAL – A State educational agency, local educational agency, or Indian tribe that desires a waiver shall submit a waiver request to the Secretary that

(A) identifies the Federal programs affected by the requested waiver;

(B) describes which Federal statutory or regulatory requirements are to be waived and how the waiving of those requirements will – (i) increase the quality of instruction for students; and (ii) improve the academic achievement of students;

(C) describes, for each school year, specific, measurable educational goals, in accordance with section 1111(b), for the State educational agency and for each local educational agency, Indian tribe, or school that would be affected by the waiver and the methods to be used to measure annually progress for meeting such goals and outcomes;

(D) explains how the waiver will assist the State educational agency and each affected local educational agency, Indian tribe, or school in reaching those goals; and

(E) describes how schools will continue to provide assistance to the same populations served by programs for which waivers are requested.

What this language describes is a state-led waiver process to encourage innovation to improve instruction and student achievement outcomes for the students served by the NCLB law.

The current waiver process being implemented by the U. S. Department of Education (USED) is a conditional waiver process. States must submit waiver plans that meet three basic conditions:

•standards/assessments
•accountability systems
•teacher/leader effectiveness

In exchange for meeting these conditions, states are granted 11-13 waivers from the original requirements of NCLB.

Originally, this was a great deal for Kentucky since we had a state law (Senate Bill 1 – 2009) that required the Kentucky Department of Education (KDE) to implement new standards/assessments, accountability systems, and teacher/principal evaluations. As Commissioner, I was fully supportive of Secretary Arne Duncan’s waiver process since the reform efforts were a great match for Kentucky.  However, the waiver process has now started to stifle innovation and have a negative impact on improving instruction and student achievement.

Here is one case in point. Kentucky adopted new science standards as required by Senate Bill 1. Our teachers began to implement these standards this school year. We have learned from teachers that they need at least two years of implementing standards prior to assessing them. Additionally, Kentucky teachers and national science assessment experts told us that new science assessments will need to be very different than typical multiple-choice tests. Students will actually need to do science and exhibit scientific thinking. Our National Assessment of Educational Progress has given us an early look at this type of assessment through the Technology and Engineering Literacy assessment. Kentucky wanted to develop a model of science assessment using Kentucky teachers and national experts that would provide innovative ways to measure student achievement in science and provide teachers with much more meaningful feedback on student performance throughout the school year so that teachers could improve instruction and student achievement.

Kentucky requested a one-year waiver from science assessment from the USED. We needed the waiver in order to provide time for our teachers to actually implement standards and develop new assessment items for field testing in spring of 2015. We committed to having an assessment of student achievement in science by 2016. Despite having set a precedent for this type of waiver by granting the PARCC and Smarter Balanced assessment consortia states a waiver from accountability and reporting math and language arts assessments for the 2014 year, USED rejected our request. Obviously we were stretching the limits of USED staff to provide a state-led waiver request that meets the original requirements of Section 9401 of NCLB.

This is only one example of how the current waiver process is stifling innovation and intruding on a state’s ability to implement state requirements contained in state legislation. There are other Kentucky examples and, in a recent meeting with other state chiefs, I heard many similar stories from other states.

What now? USED expects Kentucky to give a science assessment that measures our previous science standards in spring 2015. This expectation not only violates our state law but also violates NCLB, which requires states to assess science (once in elementary and middle school) based on current state standards.

Kentucky and many other states supported the waiver process since we had state laws matching the conditional requirements. Kentucky will be able to sustain our efforts for years to come; however, I do have concerns about other states that used the leverage of the Race to the Top (RTTT) grant and waiver process to implement reforms without state law. What happens when the current administration departs? What happens as the waiver process continues to become even more prescriptive and time-consuming?

States are responsible for education. Local school districts have tremendous flexibility and control in implementing state expectations. The federal role is and should continue to be limited to support for disadvantaged children. Hopefully, Congress will reauthorize NCLB soon and build in the flexibility for states and local school districts to be innovative in meeting the needs of all children by improving teaching and learning.

Next week, I will review recent results from national polls showing the impact of RTTT and NCLB waivers on public opinion related to Common Core standards, standardized tests, and teacher evaluation.

 

 

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