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Think NCLB Waivers Mean an End to SES? Think Again

In awarding Florida a waiver under the No Child Left Behind Act, the U.S. Department of Education gave the state's school districts freedom from having to set aside 20 percent of Title I funds for tutoring and choice in low-performing schools.

But what the feds gave, the state legislature took away.

Earlier this month, not long Florida received its waiver, the state legislature passed a law requiring schools to set aside 15 percent of their Title I funds in 2012-13 for tutoring. (No doubt the tutoring industry was ecstatic about this.)

And districts are not happy. They complained forcefully to federal officials at a meeting of the Council of the Great City Schools earlier this month that the state was backtracking on its promise in its waiver application.

Michael Yudin, the acting assistant secretary in the federal Education Department's office of elementary and secondary education, seemed sympathetic and told the district officials gathered at the conference that he agreed, in theory, on the supplemental educational services, or SES, issue.

"We don't think [mandating SES] is the best use of that money," he said. "We need to figure out how to address the Florida situation. We're not just going to sit and do nothing." He indicated that perhaps the feds might require Florida to submit an official amendment to its waiver application, which would then have to be reviewed by the Education Department.

For more from the Florida perspective, check out the Tampa Bay Times' Gradebook blog post about the issue.

To take a step back, it's important to note what Florida did—and did not—put in its application.The state did put a checkmark in the box saying it wanted a waiver from the penalties under NCLB that require schools that miss academic targets to set aside 20 percent of their Title I allocations SES and transportation for school choice. But it did not address SES whatsoever in its application, so it made no promises about what it would or would not do with this new flexibility.

Though federal officials may not like SES, ultimately, they say, the decision rests with states.

Department officials say they were keeping an eye on the Florida situation—just as they are on all states that have won waivers so far. And, federal officials say they have yet to determine if Florida has done anything that contradicts its waiver application.

"The federal requirements are waived. If a state chooses to require intervention ... that's under their state authority," an education official said. "We're certainly aware of what's happening, and we are encouraging states to really work with their districts to implement waivers."

This appears not to be just a Florida thing.

The same battle is percolating in Maryland. While the state submitted an application, which is now pending before federal officials, seeking SES flexibility and making tutoring optional, a bill is pending in the state legislature to require it.

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