Transcript OAASFEP Fall Coordinators Conference Columbus, OH October

1
NEW ESEA
WAIVER
FLEXIBILITY
REQUIREMENTS
Leigh Manasevit, Esq.
[email protected]
Brustein & Manasevit, PLLC
[email protected]
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
statutes
of Effort – See program
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.cepdc.org/cfcontent_file.cfm?Attachment=Usher_FourYe
arsAYPTrends_121610.pdf
 Districts


2006
2009
 Schools



Failing AYP
29%
36%
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the rigid requirements of an outdated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
1. ED has the authority to waive
accountability provisions of Title I, Part A.
2. It is unclear if Secretary can condition a
waiver on other action(s) not required by
law.
15
ED Announcement
on 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/seclett
er/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)
1.
2.
3.
4.
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
5.
Schoolwide
operate as schoolwide regardless of 40% poverty
threshold if

6.
School Improvement

7.
SEA identified as a priority or focus school with
interventions consistent with turnaround principles
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
8.
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
9.
Transferability

10.
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 Flexibility
As 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
 Colorado
 Arkansas
 Florida
 Arizona
 Georgia
 Connecticut
 Indiana
 D.C.
 Kentucky
 Delaware
 Massachusetts
 Hawaii
24
States Intending to Request ESEA
Flexibility (cont.)
As of November 8, 2011
November 14, 2011
 Minnesota
 New Jersey
 New Mexico
 Oklahoma
 Tennessee
 Vermont
Mid-February, 2012
 Idaho
 Illinois
 Iowa
 Kansas
 Maine
 Maryland
25
States Intending to Request ESEA Flexibility
As of November 8, 2011
Mid-February, 2012 (cont.)
 Michigan

 Mississippi

 Missouri
 Nevada
 New
Hampshire
 New York
 North Carolina
 Ohio







Oregon
Puerto Rico
Rhode Island
South Carolina
South Dakota
Utah
Virginia
Washington
Wisconsin
26
“In Exchange for…”
Must meet 4 principles
1.
College Career Ready Standards – develop
and implement




Reading / Language Arts
Math
Aligned assessments measuring growth
ELP assessment aligned to #1
27
2.
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
3.
•
Commit to develop / adopt pilot and
implement


Teacher / principal evaluation systems
Student Growth = “Significant Factor”
30
4.
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
5.
•
•
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)
36
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 clientlawyer 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.