The State Board of Education will once again consider applying for a waiver from some of the more untenable requirements of the No Child Left Behind Act, only this time the request is personal.

Instead of applying for the waiver package that Education Secretary Arne Duncan has offered to states, which requires a substantial quid pro quo, the Board next week will discuss seeking relief from some NCLB mandates under a separate waiver provision written into the law.

Secretary Duncan’s waiver package requires states to sign off on a lengthy, and potentially expensive, set of assurances that includes adopting a teacher and principal evaluation system in every school and accelerating implementation of Common Core standards.

41 states and the District of Columbia applied for Sec. Arne Duncan's NCLB waiver package. (Source: U.S. Dept. of Education). Click to enlarge.

In February, the U.S. Department of Education granted first-round waivers to eleven states. Another 26 states and the District of Columbia applied for the second round, which will be announced this spring, and four more plus Puerto Rico stated their intention to apply for round three in September.

Following meetings with school districts, education advocacy groups, teachers unions, and state education officials, the State Board of Education wrote a nine-page draft letter to Michael Yudin, the Acting Assistant Secretary of the U.S. Department of Education, explaining the financial and legal reasons why California is taking a different route. “California state law requires that the state reimburse local educational agencies for the cost of any state-mandated activities. Given California’s severe, ongoing fiscal challenges, it is impossible for the state or its districts to implement the requirements of the Secretary’s waiver package effectively and within the required timeline, and we are not willing to make promises that we are unable to carry out.”

State Superintendent of Public Instruction Tom Torlakson contends that not only would the cost of the federal requirements be prohibitive, but also that the evaluation component is outside the bounds of the Elementary and Secondary Education Act – the once and current name of NCLB.

“NCLB/ESEA is about student academic performance; teacher evaluation is not part of ESEA,” said Christine Swenson, director of the improvement and accountability division in the State Department of Education. “This isn’t appropriate and in California’s view it doesn’t belong in an ESEA waiver.”

California’s offer

A waiver wasn’t any state’s first choice. They were banking on Congress fixing the problems when it reauthorized the law. That was supposed to have happened four years ago. The window has surely closed for now until after the November election.

Reauthorization would be the best path forward, said Sue Burr, Executive Director of the State Board of Education. “In the absence of that, we are asking the federal government to waive those parts of the law that they acknowledge aren’t working.”

Specifically, the state is seeking relief on these fronts:

• Suspending the requirement that every student has to be proficient or above on state tests by 2014,
• Eliminating requirements to identify schools and districts that fail to meet Adequate Yearly Progress (AYP) as program improvement schools that have to take extra measures to improve achievement,
• Allowing districts greater flexibility in how they use ESEA funds.

The last item ties in to what California would do in exchange for being granted a waiver. Under current law, Title I schools in program improvement for failing to meet AYP must set aside some of their Title I funds for professional development. The state wants to let those schools use the money where it would be “most effective for improving teaching and learning.”

California also wants to essentially do away with AYP and concentrate on its own accountability system with the Academic Performance Index. “The proposal seeks to move us back to a single accountability system that does a better job than NCLB of identifying which schools are truly low-achieving and not improving, so we can focus our efforts there,” said Burr.

California’s system is stronger, said the State Department of Education’s Swenson, because it allows schools to show improvement without being labeled. “API allows you to show growth, and we can make decisions about whether it’s enough growth,” she said. “In the current AYP system, you’re either all fine or all failing; AYP is all or nothing.”