Transcript OAASFEP October 2014 What’s Going On?

Balancing Waiver and Standard
Reform Requirements
Leigh M. Manasevit, Esq.
[email protected]
Brustein & Manasevit, PLLC
Fall Forum 2014
Waiver Resources
• Statute – NCLB, Section 9401
• Guidance –
–Title I, Part A – July 2009
• Maintenance of Effort – See program
statutes
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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
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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
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June 28, 2011 Congressional Research Service
(CRS) Report on Secretary of Education’s
Waiver Authority
1. ED has the authority to waive accountability
provisions of Title I, Part A
2. It is unclear if the Secretary can condition a
waiver on other action(s) not required by
law
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ED Announcement
on Waivers
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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/110
923.html
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Letter
• Flexibility in exchange for rigorous
and comprehensive State plans
that:
–Improve educational outcomes
–Close achievement gaps
–Increase equity
–Improve instruction
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“ESEA Flexibility”
September 23, 2011
• 10 provisions subject to waiver
1.
2013-2014 timeline –
Develop new ambitious AMO’s
2. School improvement consequences: LEA not required to take currently
required improvement actions in Title I Schools
3. LEA improvement identification: Not required to identify for
improvement LEA that fails 2 consecutive years
4. Rural LEAs
•
Small Rural School Achievement or Rural and Low Income program
•
Flexibility regardless of AYP status
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Waivers
5.
6.
7.
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
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Waivers
8. 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
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Waivers
9. Transferability
• Up to 100%, same programs
10. SIG
• 1003g awards for any priority school
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Waivers
• Optional #11
–21st Century Community Learning
Centers support expanded learning
time during school day
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New Waiver #12
• No AYP determination
for LEAs or Schools
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New Waiver #13
• LEA may serve Title I
eligible priority high
school with graduation
rate under 60% without
regard for rank and
serve???
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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/eseafle
x/faqaddendum.doc
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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
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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
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“In Exchange for…”
Must meet 4 principles
1. College and Career Ready Standards –
Develop and Implement:
•
•
•
•
Reading/Language Arts
Math
Aligned assessments measuring growth
ELP assessment aligned to #1
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“In Exchange for…”
2. 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
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• School Performance over time
• New AMOs (ambitious)
• State LEAs
• Schools
• Subgroups
• Incentives and recognitions
• Dramatic systemic changes in lowest
performing schools
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“In Exchange for…”
3. Effective Instruction/Leadership
• Commit to develop/adopt pilot and
implement
• Teacher/principal evaluation
systems
• Student Growth = “Significant
Factor”
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“In Exchange for…”
4. Reduce duplication
and unnecessary
burden
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BASIC
ESEA TITLE I, PART A
REQUIREMENTS NOT
SUBJECT TO WAIVER
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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
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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
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Title I Basics (cont.)
• Allocations are based on
poverty levels
• Service is based on
academic need
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Program Design
• Two models of Title I, Part A program:
1. Targeted Assistance
2. Schoolwide
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Ranking and Serving Schools
Under Section 1113
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Eligible School Attendance Area
• 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
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Eligible School Attendance Areas
• Residency Model
OR
• Enrollment Model
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Parental Involvement
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Parental Involvement Overview
• Annual meeting
• Involvement in planning, review and
improvement of Title I programs
• Provide parents timely information about
Title I programs
• Coordinate with other programs, parent
resource centers
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Parental Involvement
• 1% of LEA’s Title I allocation
• 95% of 1% to schools
• LEA may keep anything over 1% for
LEA-level parental involvement
• Private school portion based on
entire amount
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LEA Reservations of Title I Funds
• 20% Choice transportation & SES
• 5% Teacher & paraprofessional
qualifications????
• 1% Parental involvement
• 10% Professional development (if LEA
identified)
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Maintenance of Effort
• Most Directly Affected by
Declining Budgets
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Comparability
• How is this calculated and why does
it matter?
Legal Authority:
Title I Statute: §1120A(c)
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Supplement Not Supplant
• Surprisingly Not Greatly Affected
by Declining Budgets!
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Equitable Services for
Private School Students
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Consultation
• LEA must provide “timely and meaningful”
consultation
• Timely
–Before the LEA makes any decisions
• Meaningful
–Genuine opportunity for parties
to express their views
–Views seriously considered
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WAIVER STATES
 41 States, the District of Columbia, Puerto Rico,
and California’s CORE districts
 Alabama, Alaska, Arkansas, Arizona, Colorado,
Connecticut, 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, Oregon, Pennsylvania, Rhode
Island, South Carolina, South Dakota,
Tennessee, Texas, Utah, Virginia, West Virginia,
Wisconsin
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Waivers Pending
• Wyoming
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Waivers Withdrawn & Rejected
• Rejected:
–California
–Iowa
• Withdrawn:
–North Dakota
–Vermont
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“High Risk” & Revoked Waivers
 “High Risk”:
 California’s CORE districts, September 2014
 Revoked:
 Washington, April 2014
Failed to include student achievement in teacher and
principal evaluations
 Oklahoma, August 2014
Repealed Common Core and failed to replace it with
equally rigorous standards
Implemented more rigorous standards in October and
hopes to get a new waiver for 2015-2016
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Non-Waiver States
• Montana & Nebraska have not applied for a
waiver
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Waiver Renewal
35 States’ waivers will expire this summer
All have submitted renewal requests
31 States, the District of Columbia, and California’s CORE districts have been
granted waiver extensions
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Arizona
Arkansas
Colorado
Connecticut
Delaware
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
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Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nevada
New Jersey
New Mexico
New York
North Carolina
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Ohio
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Utah
Virginia
Wisconsin
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Secretary Duncan
• 2014 – 2015 transition year – teacher accountability
• New 2015 -2016 deadline teacher accountability –
student test scores
• See Deborah Delisle Letter
– http://www2.ed.gov/policy/eseaflex/secretaryletters/cssoltr8212014.html
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Teacher accountability
• 17 States and the District of Columbia will likely request
the test score flexibility
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Alabama
Arkansas
Connecticut
Delaware
Georgia
Idaho
Kansas
Maryland
Michigan
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 Mississippi
 Missouri
 Ohio
 Oregon
 Rhode Island
 South Carolina
 South Dakota
 Utah
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Teacher accountability
• 12 States are not likely request the test score flexibility
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Arizona
Colorado
Florida
Kentucky
Massachusetts
Minnesota
 New Mexico
 New York
 North Carolina
 Pennsylvania
 Tennessee
 Virginia
• Hawaii, Indiana, and Wisconsin are unsure
• West Virginia, Maine, and New Hampshire received their
waivers too late to be eligible for the flexibility
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Teacher accountability
• Rep. George Miller (D-CA)
– Ranking Member of the House Committee on Education and the
Workforce
– Supporter of Common Core and accountability; One of the
architects of NCLB
– Believes a “smart pause” is needed before tying teacher
evaluations to Common Core-aligned tests
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GAO study on Waivers
• Senator Lamar Alexander (R – TN)
• Representative John Kline (R – MN)
• August 12, 2014 – requested study on
– ED process
– Issues for states
– Accountability
• http://www.help.senate.gov/newsroom/press/release/?id=f9
e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking
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Waiver Renewal Guidance – November
13, 2014
• Waiver renewal through 2017-2018 school year
– Some States can get expedited 4-year renewal through
2018-2019
• Applications due March 31, 2015
– January deadline for States seeking expedited renewal
• New guidance document:
http://www2.ed.gov/policy/elsec/guid/esea-flexibility/flexrenewal/flexguidrenewal2014.doc
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Renewal Guidance (cont.)
• New plans to identify and intervene in low-performing schools
– Beyond what the States have already implemented
– Describe, in detail, what “rigorous interventions” they are
using in schools with the biggest achievement gaps
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Renewal Guidance (cont.)
• States must:
– Update list of priority/focus schools
– Ensure that evaluation systems do not allow schools
with persistent achievement gaps to obtain highest
ratings
– Resolve any current implementation or noncompliance issues, monitoring findings, high-risk status
designations, and other conditions
• NO requirement that States show their waiver
plans/interventions are working
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Common Core
Repealed Common Core
• Indiana (April)
– Implemented standards very similar to Common Core
• Oklahoma (June)
– Reverted to old standards
• South Carolina (May)
– Using Common Core for 2014-2015
– Drawing up new standards for 2015-2016
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Adopted Slight Changes, But No
Repeal
• Florida (February)
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Reconsidering Common Core
• Missouri (July)
– Using Common Core for at least two years
– Reviewing and potentially revising for 2016-2017
• North Carolina (July)
– Created a commission to review Common Core
and make recommendations for improvement
– Common Core will be used at least for 2014-2015
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Growing Pressure to Repeal
 Louisiana
 Gov. Bobby Jindal wants Common Core repealed
 Jindal had suspended the use of PARCC exams, saying
Superintendent John White and the State board did not
properly follow contracting procedures
 However, a judge lifted Jindal’s PARCC suspension
 Jindal has now filed a lawsuit against ED and Sec. Duncan,
claiming that offering ESEA waivers and Race to the Top
went beyond Duncan’s legal authority and coerced States
into adopting Common Core
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Growing Pressure to Repeal
 New York
 More than 62,000 residents have signed on to an effort to
create a new "Stop Common Core" ballot line to allow
voters to voice their concerns about the state's new
education standards
 The ballot line received over 50,000 votes in the
November election
 New Jersey
 Gov. Chris Christie has created a commission to review the
effectiveness of Common Core assessments, and the
assessments now have less importance in teacher
evaluations
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Growing Pressure to Repeal
 Ohio
 A committee in the Ohio House of Representatives has
approved a bill to repeal Common Core
 Wisconsin
 Gov. Scott Walker called for the legislature to repeal
Common Core in 2015
 Utah
 Gov. Gary Herbert is having the state attorney general
review the standards’ connections to the federal
government
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PDK Gallup Poll on Education
http://pdkintl.org/noindex/PDK_Poll_46.pdf
• 60% American oppose Common Core –
too restrictive for teachers
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DISCIPLINE – DISPARATE IMPACT
CONTINUES AS HIGH PRIORITY
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Administration Weighs in on
Disparate Discipline
Joint ED DOJ Letter, January 8,
2014
• Discipline:
• Administration encourages policies that are fair and
avoid disparate impact
• Impact high rates of suspension / expulsion
• Disparate impact on minority students
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Disparate Discipline (cont.)
• ED aggressively focused on reducing disparaties
• Past 5 years 1,500 complaints to OCR about
disparate discipline
• http://www2.ed.gov/about/offices/list/ocr/letter
s/colleague-201401-title-vi.html
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OCR Dear Colleague – Resource Equity
• Administration weighs in on resource equity
– October 1, 2014
• http://www2.ed.gov/about/offices/list/
ocr/letters/colleague-resourcecomp201410.pdf
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OCR Dear Colleague (cont.)
• Racial Disparities in access to:
– Rigorous courses (Title VII of the Civil Rights Act)
– Academic programs
– Extracurricular activities
– Stable workforce of effective
• Teachers
• Leaders
• Support Staff
– Safe and appropriate school buildings
– Modern technology
– High quality instructional materials
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OCR Dear Colleague (cont.)
• Reference to “students of color”
–
–
–
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–
–
Black
Latino
Asian
Native Hawaiian, Pacific Islander
American Indian / Alaska Native
Students of 2 or more races
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New Guidance on ELL SWDs
• July 18, 2014
– Cover letter:
http://www2.ed.gov/policy/speced/guid/idea/m
emosdcltrs/cover-letter-els-w-disabilities-7-182014.pdf
– Q&A:
http://www2.ed.gov/policy/speced/guid/idea/m
emosdcltrs/q-and-a-on-elp-swd.pdf
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Requirements:
• IDEA, SWDs included in all statewide
assessments
• Titles I and III all ELL students tested for
English proficiency
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How do ELL SWDs participate?
a) Regular, no accommodation
b) Regular with accommodation
c) Alternate
Determination made by IEP team
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SIG
• Proposed Regulations
– September 8, 2014, Federal Register
•
•
•
•
Allow 5 year SIG Awards
State determined school interlocution model
Add model with preschool and early grade focus
Continuous family engagement
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Questions?
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Disclaimer
• This presentation is intended solely to provide general
information and does not constitute legal advice or a legal
service. This presentation does not create a client-lawyer
relationship with Brustein & Manasevit, PLLC and,
therefore, carries none of the protections under the D.C.
Rules of Professional Conduct. Attendance at this
presentation, a later review of any printed or electronic
materials, or any follow-up questions or communications
arising out of this presentation with any attorney at
Brustein & Manasevit, PLLC does not create an attorneyclient relationship with Brustein & Manasevit, PLLC. You
should not take any action based upon any information in
this presentation without first consulting legal counsel
familiar with your particular circumstances.
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