Given that the United States Congress has been reduced to debating whether or not the nation should be economically ruined, it’s no surprise to learn the Obama administration is moving ahead with plans to offer waivers from NCLB. A few thoughts:
No policy surprises. The Department of Education staked out its policy preferences pretty early in Secretary Duncan’s tenure and the waiver priorities reflect them: better standards and tests, turning around low-performing schools, and focusing teacher policy on classroom effectiveness. These are all excellent ideas and the mark of any successful cabinet tenure is to set priorities and stick with them.
Legality / constitutionality, it all depends. There’s been a lot of discussion about whether Duncan is exceeding the waiver authority granted to him in the Elementary and Secondary Education Act, nested in a larger set of complaints about education federalism, the lack of a specified education mandate in the Constitution, and so forth. Several points here: 1) Generalized griping of this nature is often a sign that the griper doesn’t want to engage with the merits of the specific policies in question. 2) It’d odd to accuse Duncan of federal overreach when he’s giving states the option to apply for a waiver from existing federal policy. That’s more state decision-making authority, not less! 3) It’s odd to accuse Duncan of overstepping his bounds vis a vis Congress when Congress can pass a new version of ESEA any time it likes. 4) If constitutionality were obvious, we wouldn’t have entire third branch of the federal government administering a highly complex, adversarial, and in many ways subjective and political process to adjudicate it. If nobody has standing to sue Duncan over the waivers, or nobody wants to sue Duncan over the waivers, or the federal courts as currently constituted rule that Duncan is acting within the considerable discretion that Congress has chosen to grant to executive branch agencies, then the waivers are constitutional, by definition.
Some good deals, some tough deals. Nothing official has been announced, so everything below is somewhat speculative. But according to Education Week it appears that the waivers will be structured as a series of bargains: Agree to A reform and you get relief from B related ESEA provision. Some bargains will be more attractive to states than others. The first–agreeing to adopt college- and career-ready standards and tests in exchange for detaching accountability targets from the 100 percent by 2014 deadline–is a fantastic deal for states, in that nearly all of them have already signed on to the Common Core State Standards. This is such a fantastic deal, in fact, that ED is going to have to devote a lot of time, attention and effort–both in designing the waivers and enforcing their terms–to ensure that states don’t simply abandon any kind of continuous improvement-focused accountability altogether.
The second bargain deals with the outcomes side of the accountability equation, where it looks like states will be able to suspend various consequences and response mechanisms for schools that fail to make AYP in exchange for committing to what I assume will be a highly SIG-like effort to turn around the lowest-performing schools. The extent to which this is a good bargain for states is highly dependent on whether or not states have already committed to some kind of legitimate bad school turnaround process, via NCLB, SIG, or state-specific accountability mechanisms. If they have, this is gravy or close to it. If not, it will be a tough thing to implement.
The third bargain looks to be something like getting a waiver from the Highly Qualified Teacher provisions of ESEA in exchange for implementing meaningful teacher evaluation based in part on student learning results. If trading Common Core membership for no 2014 deadline is getting something for nothing, this is getting nothing for something, because the HQT process didn’t really work very well to begin with, other than at the most basic level of getting school districts to stop hiring uncertified teachers, and that part of it played out a number of years ago.
ED has made a point of noting that unlike Race to the Top (which is not coincidentally based on a very similar set of policy ideas), eligibility for ESEA waivers isn’t a zero-sum game. Every state could get them, theoretically. But the teacher evaluation component of the waivers in particular underscores the fact that if, as reported, ED is going to require states to apply for all of the waivers, rather than choose among them a la carte style, some states simply aren’t in a position to apply. I’m not sure what qualifies as an acceptable substitute for the Common Core, and some states can’t make, from a technical or political standpoint, a credible promise to reform teacher evaluation. So I expect that in the end, the population of waiver recipients will look a lot like the population of RTT finalists and other states that are aligned with Secretary Duncan’s education agenda. Which is, various weak overreach-related objections notwithstanding, the point, and rightly so.