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California Readies Own Waiver Request

So far, 11 have states have gotten wiggle room from No Child Left Behind's accountability system, and 27 more are waiting to hear. Who's not on the list? California, which has already said, basically, that it doesn't think Secretary of Education Arne Duncan's waiver plan fits its needs.

But that doesn't mean the state wants to stick with NCLB as it is. Instead, Michael Kirst, the state board president, and Tom Torlakson, the state superintendent of public instruction, have readied their own waiver request, which borrows some things from the department's principles—but skips a key component: teacher evaluation.

Why? The cash-strapped state just doesn't have the funds to help school districts cover the cost of a new evaluation plan, as state law requires, Kirst said.

"We're saying we just can't pay for it," Kirst said. Other states that have applied for the flexibility "must be rich," he joked.

And, in Kirst's view, the waiver request is consistent with what's actually in the NCLB law. "We do not see anything in the law about state mandates for teacher evaluation," he said.  

It's worth noting that the powerful California State Teachers Association, an affiliate of the National Education Association, has not been a fan of the administration's brand of ESEA waivers.

"The administration's waiver proposal process swaps one federal, top-down mandate for another and continues to hold states and local schools hostage to the same unproven reforms of the Race to the Top competition," said CTA spokesman Mike Myslinski in an email. The union has ongoing concerns about standardized test scores playing a significant role in teacher evaluations.

Like other states that have applied for waivers, California is seeking to get out from under adequate yearly progress, the unpopular yardstick at the center of the NCLB law. It also wants to quit from having to set aside money for choice, tutoring, and professional development. (If the request is granted, that would be a big blow for tutoring providers across the country. One in nine public school kids is a Californian, by Kirst's count.)

The state wants to go back to a made-over version of its pre-NCLB accountability system. It's made some changes, including in the area of school improvement. The state board is scheduled to vote on the plan May 10. Kirst said it's consistent with what board members have said they're looking for.

But will this fly with the feds? It seems unlikely, given that the department has made it clear that the waiver plan is an-all-or-nothing, take-it-or-leave-deal. But Kirst is insistent that California is within its rights. "We believe the proposal fits within the standards of ESEA," he told me. "We're looking at the act [itself] and not necessarily things that go beyond it."

Needless to say, California's move brings up a ton of tricky political and legal issues. Republicans on Capitol Hill,—including the very influential Rep. John Kline, R-Minn., the chairman of the House education committee, and Sen. Lamar Alexander, R-Tenn., a former Education Secretary—have been outspoken in their view that Duncan doesn't have the authority to grant conditional ESEA waivers.

Now you have a school board president, appointed by a Democratic governor, and a Democratic state chief in one of the bluest states in the country challenging the whole conditional waiver process by coming up with something that doesn't fit the mold.

Plus, if the feds turn California down, that would put even more pressure on the department to come up with some sort of waiver plan for districts, something that has already gotten a less-than-enthusiastic reception from state chiefs. But, if the feds go for it, won't other states want to choose-their-own-waiver-adventure, too?

UPDATE: Chester E. Finn, Jr., the president of the Thomas B. Fordham Institute, who served in the department of education under President Ronald Reagan, has his own thoughts on the political stakes here. It's an election year, he said, and so the department could get pressure from the White House to lay-off California. That's happened in the past, Mr. Finn said, with another White House in another decade.

California may be safe for Democrats, but it's such a big and high profile state that it might be bad politics for the administration to get into a tussle with the state.  Finn's guess? "I suspect [the feds] will come up with some sort of face-saving compromise,"

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