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What Happens If a State Loses Its NCLB Waiver?

What would happen if a state that's received flexibility from mandates of the No Child Left Behind Act gets its waiver yanked and has to revert back to the outdated, much-maligned law? Washington state may provide the U.S. Department of Education—and its waiver system—with a first test case.

The Evergreen State's waiver was initially conditional. It then was placed on "high-risk status" back in August, because, under Washington's teacher-evaluation system, districts don't have to use state assessments as a factor in gauging educator performance—they can rely instead on student outcomes on local tests. That's not kosher under the department's waiver system, which insists on state exams.

Lawmakers and state education chief Randy Dorn tried to pass a new law that would have required every district to use the state tests—but the legislature couldn't get it over the finish line, thanks in part to lack of support from the Washington Education Association.

Now, Dorn thinks the waiver is probably toast.

"The understanding is that they have to hold the line," Dorn said of the Education Department. But he acknowledged that he's not sure yet what waiver revocation could mean for his state. "This is new territory," he told my colleague, Andrew Ujifusa in an interview.

The challenge for the Education Department may be ensuring that Washington state doesn't get off easy—while not disrupting the strong work the state is already doing in intervening in its lowest-performing schools, a weak area of NCLB implementation for many other waiver states.

"It has to be painful enough so that other states see losing a waiver as something that they don't want to go through," said Anne Hyslop, a policy analyst with the New America Foundation. "It can't just be a perfectly consequence-free scenario, but it also needs to reflect some common sense."

One major issue the department will need to work out is exactly where a state that has had its waiver revoked must start on NCLB's timetable, Hyslop said.

(Important Background: The NCLB law requires a series of increasingly serious sanctions for schools that fail to make adequate yearly progress, or AYP. Schools that don't meet their targets two years in a row must offer school choice. After three years, they must offer tutoring, and continued failure could lead to bigger and more stringent interventions, like governance changes.)

So should Washington state restart the NCLB clock, putting every school back at square one (which would mean no sanctions at all for at least a year), or should the feds pretend that Washington never got a waiver in the first place, which would mean that more schools would be subject to even more serious sanctions? Hyslop explores the question in this blog post and ultimately comes down on the side of a specially tailored waiver for ex-waiver states.

Whatever the department decides to do will affect a lot of schools, said Chad Aldeman, an associate partner at Bellwether Education Partners in Washington. Seventy-two percent of schools in Washington didn't make AYP in 2010-11, according to Education Department data, he noted. And that percentage has probably only climbed since then, he estimated.

Aldeman, who served in the Education Department under the Obama administration and worked on waivers, also noted that Washington (like most other waiver states) set less ambitious (but arguably more realistic) goals for student proficiency in its waiver. Instead of having to bring 100 percent of students to proficiency by the 2013-14 school year, as all states are required to do under NCLB, Washington just has to get 77 percent of all of its students proficient in reading.

"That is a pretty large jump, and as far as I know, that would be the biggest jump any state had to do with NCLB," Aldeman said.

There's also money at stake here. Depending on where the department and Washington decide to set the waiver clock, districts with schools that aren't making AYP under the NCLB law could have to set aside money for school choice, tutoring, and professional development. In Washington state, that could total nearly $40 million, Gov. Jay Inslee, a Democrat, has estimated.

Aldeman suggested that waiver revocation could open the door for the Education Department to trot out a solution employed under the Bush administration: differentiated consequences. That could allow a state, like Washington, to side-step the NCLB law's sanctions, which most experts agree haven't been very effective, and continue its (apparently strong) interventions in the lowest-performing schools. 

So what does the Education Department have to say? The feds aren't ready to talk specifics, said Dorie Nolt, a spokeswoman. And the agency may not even be ready to throw in the towel on Washington's waiver. The department is still working with the state, she said.

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