What ESEA Title I Requirements Remain in The Land of the Waiver?

1. Leigh M. Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC Spring Forum 2014 What ESEA Title I Requirements Remain in The Land of the Waiver? Brustein & Manasevit, PLLC

2. Waiver Resources • Statute – NCLB, Section 9401 • Guidance – • Title I, Part A – July 2009 • Maintenance of Effort – See program statutes Brustein & Manasevit, PLLC

3. NCLB – What can be waived? The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT: • Allocation or distribution of funds to SEAs, LEAs, or other recipients of ESEA funds • Comparability • Supplement not supplant • Equitable services to private school students • Parent involvement Brustein & Manasevit, PLLC

4. NCLB – What can be waived (cont.)? The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT: • Civil rights • Maintenance of Effort • Charter School requirements • Use of funds for religion Brustein & Manasevit, PLLC

5. June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority • ED has the authority to waive accountability provisions of Title I, Part A • It is unclear if the Secretary can condition a waiver on other action(s) not required by law Brustein & Manasevit, PLLC

6. ED Announcementon Waivers Brustein & Manasevit, PLLC

7. Waivers • ED makes the announcement • September 23, 2011 Letter to Chiefs • NCLB became a barrier to reform • Opportunity to request flexibility • State • LEA • Schools http://www2.ed.gov/policy/gen/guid/secletter/110923.html Brustein & Manasevit, PLLC

8. Letter • Flexibility in exchange for rigorous and comprehensive State plans that: • Improve educational outcomes • Close achievement gaps • Increase equity • Improve instruction Brustein & Manasevit, PLLC

9. “ESEA Flexibility” September 23, 2011 • 10 provisions subject to waiver • 2013-2014 timeline – Develop new ambitious AMO’s • School improvement consequences: LEA not required to take currently required improvement actions in Title I Schools • LEA improvement identification: Not required to identify for improvement LEA that fails 2 consecutive years • Rural LEAs • Small Rural School Achievement or Rural and Low Income program • Flexibility regardless of AYP status Brustein & Manasevit, PLLC

10. Waivers • Schoolwide Operate as schoolwide regardless of 40% poverty threshold if • SEA identified as a priority or focus school with interventions consistent with turnaround principles • School Improvement • 1003a funds to serve any priority or focus school if SEA determines school in need of support • Reward Schools • Rewards to any reward school if the SEA determines appropriate Brustein & Manasevit, PLLC

11. Waivers • HQT improvement plans • LEA that does not meet HQT no longer must develop an improvement plan • Flexibility in use of Title I and Title II funds • LEA-SEA develop “more meaningful” evaluation and support systems which eventually will satisfy the HQT requirement • SEA still must ensure poor and minority children not taught at higher rates by inexperienced, unqualified or out-of-field teachers Brustein & Manasevit, PLLC

12. Waivers • Transferability • Up to 100%, same programs • SIG • 1003g awards for any priority school Brustein & Manasevit, PLLC

13. Waivers • Optional #11 • 21st Century Community Learning Centers support expanded learning time during school day Brustein & Manasevit, PLLC

14. New Waiver #12 • No AYP determination for LEAs or Schools Brustein & Manasevit, PLLC

15. New Waiver #13 • LEA may serve Title I eligible priority high school with graduation rate under 60% without regard for rank and serve??? Brustein & Manasevit, PLLC

16. New Waiver #14 • New optional waiver from March 2013 FAQ Addendum • SEAs and LEAs would no longer have to make AYP determinations • http://www2.ed.gov/policy/eseaflex/faqaddendum.doc Brustein & Manasevit, PLLC

17. New Waiver #15 • August 2013 • Delays in implementing teacher evaluations • ED “willing to consider, on a State-by-State basis, requests to permit a Window 1 or Window 2 SEA to have one additional year beyond the timeline required by ESEA flexibility — that is, to have until the 2016–2017 school year — to use the results of its teacher and principal evaluation and support systems to inform personnel decisions. ” • Assistant Secretary's August 2, 2013 Letter Brustein & Manasevit, PLLC

18. New Waiver #16 • September 2013 • “double-testing” waiver • States can test students in EITHER new pilot assessment (SBAC/PARCC) OR current State assessment • As long as each student takes a “full” test • States can also ask for moratorium on using these tests for accountability determinations (freezing accountablity) • Assistant Secretary's September 17, 2013 Letter Brustein & Manasevit, PLLC

19. “In Exchange for…”Must meet 4 principles • College and Career Ready Standards – Develop and Implement: • Reading/Language Arts • Math • Aligned assessments measuring growth • ELP assessment aligned to #1 Brustein & Manasevit, PLLC

20. “In Exchange for…” • State Developed Differentiated Recognition, Accountability and Support • Must develop system of Differentiated Recognition, Accountability and Support • All LEAs • All Title I Schools • Must consider Reading, Language Arts, and Math • All students • All subgroups • Graduation Rates Brustein & Manasevit, PLLC

21. School Performance over time • New AMOs (ambitious) • State LEAs • Schools • Subgroups • Incentives and recognitions • Dramatic systemic changes in lowest performing schools Brustein & Manasevit, PLLC

22. “In Exchange for…” • Effective Instruction/Leadership • Commit to develop/adopt pilot and implement • Teacher/principal evaluation systems • Student Growth = “Significant Factor” Brustein & Manasevit, PLLC

23. “In Exchange for…” • Reduce duplication and unnecessary burden Brustein & Manasevit, PLLC

24. Waiver States • 43 States, Puerto Rico, the District of Columbia, CORE districts in California • Alabama, Alaska, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin Brustein & Manasevit, PLLC

25. Waivers Pending • Iowa (approval unlikely – was rejected once in June 2013) • Wyoming • Bureau of Indian Education Brustein & Manasevit, PLLC

26. Waivers Withdrawn & Rejected • Rejected: • California • Iowa • Withdrawn: • North Dakota • Vermont Brustein & Manasevit, PLLC

27. Non-Waiver States • Montana & Nebraska have not applied for a waiver Brustein & Manasevit, PLLC

28. Center on Education Policy Waiver Report - March 2013 • Report found that States are supportive of the waivers because of the relief from some of the burdensome requirements of ESEA • States were concerned with the effect of ESEA reauthorization on waivers including confusion and additional costs of implementing accountability systems and developing new teacher evaluation systems • 24 of 38 States identified that costs could be greater under ESEA waivers • 11 of 34 States and D.C. that have received waivers have needed to revise or implement new teacher and principal evaluations • One State official commented on ED’s quantity of revisions to their application as “erred on the side of ridiculous” http://www.cep-dc.org/cfcontent_file.cfm?Attachment=McMurrerYoshioka%5FReport%5FStatesPerspectivesonWaivers%5F030413%2Epdf Brustein & Manasevit, PLLC

29. Alliance for Excellent Education ESEA Waivers Study - February 2013 • Study concluded that a majority of waiver States have ignored Federal regulations to promote accountability with high school graduation rates • 2008 – ED regulations required States to measure high school graduation rates as an accountability measure, a four-year cohort rate • 23 waiver States were permitted to use an accountability system inconsistent with the regulations by including GED certificates and drop out rates • 12 States decreased the weight of graduation rates to less than 25% http://www.all4ed.org/files/ESEAWaivers.pdf Brustein & Manasevit, PLLC

30. New America Foundation Waiver Report – December 2013 • “It’s All Relative: How NCLB Waivers Did — And Did Not —Transform School Accountability” • Studied implementation of waivers in sixteen States only • Eleven states classified fewer priority or focus schools in 2012–13 than the number of schools identified for NCLB improvement in 2011-12 • On average, two-thirds of the schools identified by NCLB were not among the bottom 15 percent of the state’s waiver accountability plan • ED included “safeguards” to ensure certain kinds of schools were typically priority or focus schools: high schools with low graduation rates and schools receiving School Improvement Grants (SIG). But “these safeguards did not necessarily result in a greater emphasis on high school accountability or the consistent identification of SIG schools.” • http://newamerica.net/sites/newamerica.net/files/policydocs/ItsAllRelative-12-17-2013.pdf Brustein & Manasevit, PLLC

31. ED Monitoring • ED monitored State Waivers SY 2012-2013 • (monitoring for extensions to be in 2014-15) • 3 components: “Part A”- ongoing to include technical assistance and implementation of waiver components; Part B – “deeper look” at the SEA’s implementation of Principles 1, 2, and 3, as well as follows-up on any “next steps” from Part A Monitoring. “Part C” for waiver extensions • Flexibility Monitoring Part A Protocol: http://www.ed.gov/esea/flexibility/documents/monitoring-part-a-protocol-acc.doc • Part B Monitoring Plan: http://www2.ed.gov/policy/eseaflex/monitoring/part-b-plan.doc Brustein & Manasevit, PLLC

32. Additional Waivers • “CORE” District waiver • Approved in August 2013 for Nine California school districts • Specialized waiver process through ED – no “official” application • Concerns among States about State responsibility/involvement • Sacramento backed out in April 2014 due to issues with teacher evaluations Brustein & Manasevit, PLLC

33. What’s Next for Waivers • Renewals • States that submitted applications in first two windows can renew for two more years • Starting January 2014 • Must report on progress, show compliance with four “principles for reform” • High-Risk Waivers • States having problems with teacher/principal evaluation systems (all got conditional approval) • Kansas, Oregon, Arizona, Washington • ED says that if not in compliance by end of SY 2013-14, will revoke waivers • What happens to a State if ED revokes waiver???? Brustein & Manasevit, PLLC

34. Basic ESEA Title I, Part A Requirements Not Subject to Waiver Brustein & Manasevit, PLLC

35. Title I, Part A Topics • General Program Requirements • Ranking and Serving • Parental Involvement • Set-asides • Maintenance of Effort • Comparability • Supplement Not Supplant • SES/Choice • Equitable Services W W Brustein & Manasevit, PLLC

36. Title I Basics • Title I, Part A is a State-administered program • ED grants funds to States based on statutory formulas • State grants funds to LEAs based on statutory formula • LEA allocates funds to schools based on ranking and serving Brustein & Manasevit, PLLC

37. Allocations are based on poverty levels Service is based on academic need Title I Basics (cont.) Brustein & Manasevit, PLLC

38. Program Design • Two models of Title I, Part A program: • Targeted Assistance • Schoolwide Brustein & Manasevit, PLLC

39. Targeted Assistance: Focus on Identified Students • Identify “Title I students” and provide with supplemental services • Ensure Title I $ solely used to benefit identified students • For schools ineligible or choose not to operate schoolwide Brustein & Manasevit, PLLC

40. Who is a Title I student? • Students identified as failing or at risk of failing State standards: NOT based on poverty! Brustein & Manasevit, PLLC

41. Eligible Title I students • Student eligibility is based on: • Multiple • Educationally related • Objective criteria • Developed by LEA • If preschool - grade 2, judgment of teacher, interviews with parents, and other developmentally appropriate means Brustein & Manasevit, PLLC

42. Automatically Eligible • If student in the previous 2 years received services in • Head Start • Even Start • Early Reading First or • Migrant Part C • If the student is currently eligible under • Neglected and Delinquent or Homeless • Migrant (not receiving Part C services), IDEA and LEP students are eligible on the same basis as any other student Brustein & Manasevit, PLLC

43. Recordkeeping • Records must be maintained that document that Part A funds are spent on activities and services for only Title I, Part A participating students Brustein & Manasevit, PLLC

44. Schoolwide Programs • Combine Federal, State, and local programs (sometimes funds) to upgrade the entire educational program • However, in most States the SEA must approve consolidation! • All students in schoolwide schools may be served by Title I employees • Pre-requisite: 40% poverty Brustein & Manasevit, PLLC

45. Ranking and Serving Schools Under Section 1113 Brustein & Manasevit, PLLC

46. Eligible School Attendance Areas • Percentage of children from low-income families who reside in area . . . AT LEAST AS HIGH AS . . . • Percentage of children from low-income families in LEA • LEA has flexibility to serve any school attendance area with at least 35% poverty – even if percentage is lower than average of LEA Brustein & Manasevit, PLLC

47. Eligible School Attendance Areas • Residency Model OR • Enrollment Model Brustein & Manasevit, PLLC

48. Ranking and Serving • Exceeding 75% poverty • Strictly by poverty • Without regard to grade span • At or below 75% poverty • May rank by grade span Serve strictly in order of rank! Brustein & Manasevit, PLLC

49. Allocation to Schools • After set-asides • Allocate to schools based on total # of low income residing in area (including nonpublic) • Discretion on amount of PPA • Higher PPAs must be in higher schools on ranked list • No regard to SWP or TAS Brustein & Manasevit, PLLC

50. Exception: Rank & Serve • “Skip” school, if: • Comparability met • Receiving supplemental State/local funds used in Title I-like program • Supp. State/local funds meet or exceed amount would be received under Title I • Still count and serve nonpublic in area Brustein & Manasevit, PLLC