Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq. [email protected] Brustein & Manasevit, PLLC Fall Forum 2014.

Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, [email protected]

Brustein & Manasevit, PLLCFall 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


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


June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority1.ED has the authority to waive accountability provisions of Title I, Part A2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law

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ED Announcementon Waivers


Waivers • ED makes the announcement• September 23, 2011 Letter to Chiefs– NCLB became a barrier to reform– Opportunity to request flexibility• State• LEA• Schoolshttp://www2.ed.gov/policy/gen/guid/secletter/

110923.html


Letter• Flexibility in exchange for rigorous

and comprehensive State plans that:–Improve educational outcomes–Close achievement gaps–Increase equity–Improve instruction


“ESEA Flexibility” September 23, 2011

• 10 provisions subject to waiver1. 2013-2014 timeline –

Develop new ambitious AMO’s2. School improvement consequences: LEA not required to take currently

required improvement actions in Title I Schools3. LEA improvement identification: Not required to identify for

improvement LEA that fails 2 consecutive years4. Rural LEAs

• Small Rural School Achievement or Rural and Low Income program• Flexibility regardless of AYP status


Waivers5. Schoolwide

Operate as schoolwide regardless of 40% poverty threshold if• SEA identified as a priority or focus school with

interventions consistent with turnaround principles6. School Improvement

• 1003a funds to serve any priority or focus school if SEA determines school in need of support

7. Reward Schools• Rewards to any reward school if the SEA determines

appropriate


Waivers8. 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


Waivers9. Transferability

• Up to 100%, same programs10. SIG

• 1003g awards for any priority school


Waivers

•Optional #11–21st Century Community Learning

Centers support expanded learning time during school day


New Waiver #12

• No AYP determination for LEAs or Schools


New Waiver #13• LEA may serve Title I

eligible priority high school with graduation rate under 60% without regard for rank and serve???


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


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


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


“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


“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


• School Performance over time• New AMOs (ambitious)• State LEAs• Schools• Subgroups

• Incentives and recognitions• Dramatic systemic changes in lowest

performing schools


“In Exchange for…”

3. Effective Instruction/Leadership• Commit to develop/adopt pilot and

implement• Teacher/principal evaluation

systems• Student Growth = “Significant

Factor”


“In Exchange for…”

4. Reduce duplication and unnecessary burden


BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER


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


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


Title I Basics (cont.)


• Allocations are based on poverty levels

• Service is based on academic need

Program Design

• Two models of Title I, Part A program:1. Targeted Assistance2. Schoolwide


Ranking and Serving Schools Under Section 1113


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


Eligible School Attendance Areas• Residency Model

OR

• Enrollment Model


Parental Involvement


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


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


LEA Reservations of Title I Funds• 20% Choice transportation & SES• 5% Teacher & paraprofessional

qualifications???? • 1% Parental involvement• 10% Professional development (if LEA

identified)


Maintenance of Effort

• Most Directly Affected by Declining Budgets


Comparability • How is this calculated and why does

it matter?

Legal Authority:Title I Statute: §1120A(c)


Supplement Not Supplant

• Surprisingly Not Greatly Affected by Declining Budgets!



Equitable Services for Private School Students

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


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


Waivers Pending• Wyoming


Waivers Withdrawn & Rejected

• Rejected:–California– Iowa

• Withdrawn: –North Dakota–Vermont


“High Risk” & Revoked Waivers “High Risk”:

California’s CORE districts, September 2014 Revoked:

Washington, April 2014Failed to include student achievement in teacher and

principal evaluationsOklahoma, 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


Non-Waiver States

• Montana & Nebraska have not applied for a waiver


Waiver Renewal


35 States’ waivers will expire this summerAll have submitted renewal requests31 States, the District of Columbia, and California’s CORE districts have been granted waiver extensions

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/secretary-letters/

cssoltr8212014.html


Teacher accountability• 17 States and the District of Columbia will likely request

the test score flexibility– Alabama– Arkansas– Connecticut– Delaware– Georgia– Idaho– Kansas– Maryland– Michigan


Mississippi Missouri Ohio Oregon Rhode Island South Carolina South Dakota Utah

Teacher accountability• 12 States are not likely request the test score flexibility

– Arizona– Colorado– Florida– Kentucky– Massachusetts– Minnesota

• Hawaii, Indiana, and Wisconsin are unsure• West Virginia, Maine, and New Hampshire received their

waivers too late to be eligible for the flexibility


New Mexico New York North Carolina Pennsylvania Tennessee Virginia

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


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=f9e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking


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/flex-renewal/flexguidrenewal2014.doc


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


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 non-compliance issues, monitoring findings, high-risk status designations, and other conditions

• NO requirement that States show their waiver plans/interventions are working


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


Adopted Slight Changes, But No Repeal

• Florida (February)


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


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


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 JerseyGov. Chris Christie has created a commission to review the

effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations


Growing Pressure to Repeal Ohio

A committee in the Ohio House of Representatives has approved a bill to repeal Common Core

WisconsinGov. Scott Walker called for the legislature to repeal

Common Core in 2015Utah

Gov. Gary Herbert is having the state attorney general review the standards’ connections to the federal government


PDK Gallup Poll on Educationhttp://pdkintl.org/noindex/PDK_Poll_46.pdf

• 60% American oppose Common Core – too restrictive for teachers


DISCIPLINE – DISPARATE IMPACT CONTINUES AS HIGH PRIORITY


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


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/

letters/colleague-201401-title-vi.html


OCR Dear Colleague – Resource Equity

• Administration weighs in on resource equity–October 1, 2014• http://www2.ed.gov/about/offices/

list/ocr/letters/colleague-resourcecomp-201410.pdf


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


OCR Dear Colleague (cont.)• Reference to “students of color”– Black– Latino– Asian– Native Hawaiian, Pacific Islander– American Indian / Alaska Native– Students of 2 or more races


New Guidance on ELL SWDs• July 18, 2014– Cover letter:

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/cover-letter-els-w-disabilities-7-18-2014.pdf

– Q&A:

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q-and-a-on-elp-swd.pdf


Requirements:

• IDEA, SWDs included in all statewide assessments

• Titles I and III all ELL students tested for English proficiency


How do ELL SWDs participate?

a) Regular, no accommodationb) Regular with accommodation c) Alternate

Determination made by IEP team


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


Questions?


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 attorney-client 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.


Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq. [email protected] Brustein & Manasevit, PLLC Fall Forum 2014.

Documents

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