Administration to Move Forward on NCLB Accountability Waiver Plan

Secretary of Education Arne Duncan announced on Friday that the administration plans to proceed with its proposal to issue waivers for states struggling to meet some education accountability standards, including the proficiency targets laid out in No Child Left Behind (NCLB).

Congressional action on reauthorization of the Elementary and Secondary Education Act has stalled as a result of partisan gridlock and lawmakers distracted by other legislative issues, including the recent debt ceiling bill. While the administration had hoped to reauthorize the legislation by the start of the 2011-2012 school year next month, both the House and Senate are far from tackling the accountability section of the law.

As the 2014 NCLB deadline approaches for states to reach 100 percent proficiency in reading and math, the administration is ramping up efforts to adjust the law without congressional action. Many states and school districts are already falling short of their annual Adequate Yearly Progress (AYP) goals for proficiency and the situation is likely to become more dire as those goals get closer to 100 percent. States which do not reach the ultimate 100 percent goal will be at risk of losing a significant amount of federal dollars that support their students. According to an estimate from the Department of Education, 82 percent of schools will fail to meet AYP under the law this year. Although results thus far suggest that this estimate is likely too high, every state still has cause for concern.

Under the waiver plan, the administration will provide states with some relief from the strict deadlines and labels of failure set forth in NCLB. Governors will be given flexibility to readjust their AYP proficiency targets, provided they maintain high standards. This buys time for states to reach the 100 percent requirement and frees them from some pending sanctions under the current law. Secretary Duncan expressed hope that Congress will act on reauthorization soon regardless, so that the waivers are only a transition between the current deadlines in the law and the next iteration of the legislation. Under the current NCLB law, though, waivers can be offered for up to four years.

Secretary Duncan will not announce the details of the proposal until September. In the meantime, the Department has given some indications of the forthcoming plan, as reported by Ed Week. Outside reviewers will assess applications from states, rather than Department employees. And waivers will be issued this school year, giving states only a few months to compile their applications after the September announcement. That timeline will likely allow states to alter their proficiency standards for the end of the 2011-12 school year; but schools will not feel the regulatory relief from most aspects of the law until the following 2012-2013 school year.

The waivers will also likely be predicated on the state proposals for particular education policy reforms within the states. While all 50 states will be eligible, only those states with serious reform strategies will earn the waivers, providing a massive incentive to state legislatures to adopt the administration’s reforms. The checklist of reforms, which closely reflects the priorities outlined in Race to the Top, will likely include raising standards and executing school improvement plans for struggling schools, as well as improving teacher evaluation systems.

Chairman of the House Education and Workforce Committee, Republican John Kline, today reaffirmed his concerns that the waiver strategy is a legal overstep of the Department’s authority. A report issued in June by the Congressional Research Service studying the issue found that, based on a review of similar waiver uses by other government agencies, “although individual waivers may face legal challenges…the courts will generally uphold an agency’s exercise of its statutory waiver authority.”

Additionally, CRS offered an opinion on the requirement that states implement certain reforms to earn the waiver. Provided the Department issues the waiver announcement as an invitation for applications, approval of which will be tied directly to voluntary compliance with those reforms, CRS found that the procedure would probably withstand a legal challenge. If compliance was mandatory, courts would be more likely to strike down the waiver authority.

Secretary Duncan was clear that the waivers are intended only to provide regulatory relief to states in the interim before reauthorization, and are not an attempt to usurp legislative authority. The chairman of the Senate Health, Education, Labor, and Pensions Committee, Democrat Tom Harkin, reluctantly offered his support for the measure, acknowledging that, while he would prefer to take action in Congress, legislative stalemate will invariably precede reauthorization.

Check back with Ed Money Watch for more following the September announcement from the Department of Education.