NEW ESEA WAIVER FLEXIBILITY REQUIREMENTS

1. NEW ESEA WAIVER FLEXIBILITY REQUIREMENTS Leigh Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC lmanasevit@bruman.com

2. Faux Reauthorization: Waivers

3. Problem with Waivers? Lack of Transparency!!

4. Waiver Resources • Statute – NCLB Section 9401 • Guidance – • Title I Part A – July 2009 • Maintenance of Effort – See program statutes

5. 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 service to private school students • Parent involvement • Civil rights

6. What can be waived? Cont., Secretary may waive any provision, EXCEPT: • Charter school requirements (Title V) • Prohibitions regarding State aid (9522); using funds for religious purposes (9505) • Selection of eligible school attendance areas under 1113, unless the % of low income students is less than 10% below the lowest eligible school

7. The AYP Waiver Wars • Failure to make AYP • Center for Education Policy Study http://www.cep-dc.org/cfcontent_file.cfm?Attachment=Usher_FourYearsAYPTrends_121610.pdf • Districts Failing AYP • 2006 29% • 2009 36% • Schools Failing AYP • 2006 29% • 2009 33% • 2013- 2014 SY 100% proficient: Required • Causing sharp increases in target levels

8. The AYP Waiver Wars • Secretary Duncan: • 82% of schools could fail AYP this year (10-11)

9. The AYP Waiver Wars June 23, 2011 Chairman Kline/ Chairman Hunter to Secretary Duncan: “…the Departments proposal is cause for concern….” “….to grant conditional waivers in exchange for reforms [is] not authorized by Congress…” July 6, 2011 Secretary Duncan Response: “ESEA was due for reauthorization in 2007, and students and teachers should not be burdened by its flaws for much longer.” “…[We] have began to consider how to exercise our authority if Congress does not reauthorize ESEA soon, to invite requests for flexibility….”

10. The AYP Waiver Wars April 25, 2011 Montana to Secretary Duncan: “I am delaying the scheduled increase of the … (AMOs).” June 21, 2011 Idaho to Secretary Duncan: “In 2011…Idaho will not lift its proficiency targets for…[AYP]. “Idaho…does not have the luxury of spending limited time and limited resources on meeting the rigid requirements of an outdated accountability system….” June 29, 2011 South Dakota to Secretary Duncan: “…[We] intend to hold our…AMO targets at the 2009-2010 levels.”

11. The AYP Wars July 1, 2011 Secretary Duncan response to Montana: “Unfortunately, this action leaves the Department no alternative but to pursue enforcement action.” -Special Conditions -Possible withholding of Part A Funds

12. The Peace Offerings • August 15, 2011 Montana to Secretary Duncan: “Our offices were able to agree to a compromise that would place our AMO’s at…” “…[W]e will amend our…workbook…which will suffice for compliance with the law.” • July 27, 2011: Secretary Duncan to Idaho: “Idaho’s revised AMO’s are consistent with the requirements under….[NCLB]” “…I am pleased to approve Idaho’s amended plan…” • August 2, 2011 South Dakota to ED: “…During that phone conversation, South Dakota’s proposed AMO’s for reading were approved….”

13. Requested AYP Flexibility Arkansas – Denied Idaho – Granted (not a waiver) Kansas – Denied Michigan – Part Denied, Part Pending Minnesota – Pending Montana – Granted (not a waiver) South Dakota – Granted (not a waiver) Tennessee – Requested Utah – Granted CEP website: http://www.cep-dc.org/ As of November 11, 2011

14. 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 Secretary can condition a waiver on other action(s) not required by law.

15. ED Announcementon Waivers

16. Waivers • ED makes the big 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

17. Letter (cont…) • Flexibility in exchange for rigorous and comprehensive State plans • Improve educational outcomes • Close achievement gaps • Increase equity • Improve instruction

18. “ESEA Flexibility” September 23, 2011 • 10 provisions subject to waiver: (1 waiver-10 sections) • 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

19. 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

20. Waivers • HQT improvement plans • LEA that does not meet HQT no longer must develop an improvement plan • Flexibility in use of Title I and 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

21. Waivers • Transferability • Up to 100%, same programs • SIG • 1003g awards for any priority school

22. Waivers • Optional • 21st Century Learning Centers support expanded learning time during school day

23. States Intending to Request ESEA FlexibilityAs of November 8, 2011 The following is a list of States that have indicated they intend to request ESEA flexibility. This list is current as of the date indicated above; the Department will periodically update this list to reflect changes after that date. Please note that a State’s indication of its intent to request is not binding. States are listed in alphabetical order. November 14, 2011 Mid-February, 2012 Arkansas Arizona Connecticut D.C. Delaware Hawaii • Colorado • Florida • Georgia • Indiana • Kentucky • Massachusetts

24. States Intending to Request ESEA Flexibility (cont.)As of November 8, 2011 November 14, 2011 Mid-February, 2012 Idaho Illinois Iowa Kansas Maine Maryland • Minnesota • New Jersey • New Mexico • Oklahoma • Tennessee • Vermont

25. States Intending to Request ESEA FlexibilityAs of November 8, 2011 Mid-February, 2012 (cont.) Oregon Puerto Rico Rhode Island South Carolina South Dakota Utah Virginia Washington Wisconsin • Michigan • Mississippi • Missouri • Nevada • New Hampshire • New York • North Carolina • Ohio

26. “In Exchange for…”Must meet 4 principles • College Career Ready Standards – develop and implement • Reading / Language Arts • Math • Aligned assessments measuring growth • ELP assessment aligned to #1

27. State developed system of 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, Math • All students • All subgroups • Graduation Rates • Eliminates 2% alternate assessment based on modified achievement standards

28. School Performance over time • New AMOs (ambitious) • State LEAs • Schools • Subgroups • Incentive recognitions • Dramatic systemic changes in lowest performing schools

29. Effective Instruction / Leadership • Commit to develop / adopt pilot and implement • Teacher / principal evaluation systems • Student Growth = “Significant Factor”

30. Reduce duplication and unnecessary burden

31. Definitions • Focus Schools • Title I School contributing to achievement gap • Largest gap or • Subgroups with low achievement – or low high school graduation rate • At least 10% of Title I Schools in State

32. Definitions • Priority Schools • Lowest 5% of schools based on “all students” or • Title I participating or eligible high school or • Graduation rate under 60% or • Tier I or II SIG utilizing intervention model

33. Definitions • Reward Schools • Highest performing “all students” or • High progress

34. Timelines • Notify of intent to apply by Oct 12, 2011 • Submit November 14, 2011; December Peer Review or • Mid February, Spring 2012 Review • Flexibility by end of 2011-2012

35. Kline: Response to Waiver Announcement • September 26, 2011 Press Release: House Education & Workforce Committee • Waiver Route Bypasses Congress • Unprecedented Authority to Secretary • Will Delay Reauthorization • Senator Lamar Alexander (R. TN) (Former U.S. Education Secretary) • Fix NCLB Through Reauthorization - (Not Waivers)

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