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NCLB Waivers in Kansas, Oregon, Washington at 'High Risk'

UPDATED

The U.S. Department of Education is threatening to revoke No Child Left Behind Act waivers for three states at the end of the 2013-14 school year over their failure to come up with new teacher-evaluation systems tied to student growth.

Kansas, Oregon, and Washington have been placed on "high-risk" status and given one more year to get their teacher-evaluation systems on track. Specifically, each of these states is struggling with incorporating student growth into teacher ratings.

This is the first enforcement action federal officials have taken since the initial waivers were issued early last year. Forty states plus the District of Columbia (and a group of eight California districts) have waivers from provisions of the NCLB law, including that 100 percent of students be proficient in reading and math by the end of the 2013-14 school year.

In letters sent to the states yesterday, the Education Department spelled out more conditions they must meet during the coming school year to keep their waivers. Mostly, federal officials want to see evidence that these states are trying to meet their teacher-evaluation deadlines. If these conditions are not met, then the ultimate penalty for each state is losing its waiver and being forced back under NCLB as written.

The Obama administration's NCLB waivers—an answer to the failure of Congress to rewrite the law—require that states implement teacher-evaluation systems that incorporate student growth as a significant factor, all on an aggressive federal timeline. States must get their systems approved by the department during the first year of their waivers. (For the latest on which states' evaluation systems are approved, see our map.) These new systems then must be implemented statewide by 2014-15 and used to inform personnel decisions in 2015-16 (or 2016-17 with an additional waiver).

Though each of the three states has failed to meet these requirements, Education Department letters show each state is in a different situation.

Washington State is likely facing the heaviest lift. While its teacher-evaluation system is in state law, that law also leaves it up to individual districts to decide whether to include state test scores in teacher ratings. (UPDATE 8/16, 12:50 P.M.: It's important to note that the state law requires test scores to be a factor in teacher ratings, but allows for other tests—such as classroom tests—to be used. Thanks to a Washington reader for clarifying that.) Federal requirements say only state test scores are to be used, so Washington will have to secure a change in state law—which likely won't be an easy task given how controversial teacher-evaluation debates are in statehouses across the country. Nevertheless, the Education Department's letter says the state has "committed" to changing the law.

Nathan Olson, a spokesman for the Washington Department of Education, noted that schools' chief Randy Dorn is an elected official, and a former legislator. He has "great relationships with current legislators, but there are 147 in our state. So we honestly don't know how tough it will be to change the law." Olson said they're committed to changing the law when the legislature meets again in January.

Kansas already was supposed to have piloted its new system, and particularly how it would incorporate student growth into teacher evaluations, but instead has only convened a task force, the department's letter to Kansas said. The result is Kansas hasn't demonstrated that student growth is a significant factor in the new teacher-evaluation systems and that the new system differentiates among teachers.

Oregon is also trying to figure out how to incorporate student growth into its evaluations, and wants another year to pilot its methods, the letter states.

UPDATED 3:15 P.M.: Oregon, however, seems as if it might protest its new "high-risk" label.

Rob Saxton, the state's deputy superintendent, said he's confident they'll be able to comply with their new deadlines. But, he added, "We are disappointed that USDOE has chosen to label states receiving a waiver extension as 'high risk' and we will be requesting they reconsider our designation based on their knowledge of our efforts and communications."

On today's media call, federal officials expressed optimism that none of these states would lose its waiver. For all of these states, "There is a path forward," a department official said. "There are options. We need the states to commit to a solution."

This federal warning did not come out of nowhere for these states. While the U.S. Department of Education was granting most states two-year waivers, a handful (including these three) were given one year of flexibility until conditions were met. Submitting final guidelines for new teacher evaluations was a condition for each of these states when they won a waiver last year.

In all, 10 states approved in the first two waiver rounds had conditional, one-year waivers. Five have had those conditions lifted and their waivers renewed. The other five include the three placed on high-risk status today, plus Arizona and Georgia, which are still working to get their conditions lifted. Georgia is working to get its final school rating index approved by federal officials. Arizona officials had to submit final teacher-evaluation guidelines for approval, and tweak its accountability index to give graduation rates more weight.

Whether or not the Education Department would really revoke a waiver is an open question.

Education policy experts point out how logistically difficult it would be to spend a year or two implementing a new accountability system only to be forced back to an outdated system. NCLB as written, for example, requires states to identify schools for improvement if they don't make adequate yearly progress—but after a two-year AYP break re-identifying schools would be tricky.

The high-risk status "seems like more of a symbolic label," said Anne Hyslop, a policy analyst for the New America Foundation and an expert on the NCLB waivers. "Would the department actually want to take a waiver away from any of these states? The cost of doing so would be pretty high, at least politically, not to mention practically speaking."

What's more, she and other experts wonder how aggressive the Education Department will be on more-complex issues involving waivers, such as whether student growth is being used appropriately in school accountability systems, and whether states that drop out of the common-testing consortia will be monitored as they pursue their own assessments.

"There are a ton of implementation issues," Hyslop said.

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