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Some States Without NCLB Waivers Say They Dodged a Bullet

When President Barack Obama first offered states flexibility from mandates of the No Child Left Behind Act back in 2011, nearly every state jumped at the opportunity. (Forty-two states and the District of Columbia now have waivers. Washington state lost its flexibility earlier this year. That leaves seven waiverless states total.)

But almost three years later, at least one state, Utah, is thinking of voluntarily ditching its waiver. And officials in at least three other waiverless states say they don't feel they're missing out on much, even though they're stuck operating under the much-maligned, outdated NCLB law.

In fact, they argue, not to having to negotiate with the U.S. Department of Education on the finer points of say, teacher evaluation, rigorous standards, or school turnarounds has made it a lot easier to chart their own paths on those sticky issues. What's more,  Richard Zeiger, the chief deputy superintendent in California, said he's been contacted by officials in other states struggling with NCLB waiver implementation, wanting to know, essentially, what the waiverless experience has been like.  

Zeiger tells them it's worked well for the Golden State. "We've been very happy [without a waiver], and the price you pay is relatively small," Zeiger said. California applied for a waiver and was rejected last year because the state didn't see eye-to-eye with the feds on teacher evaluation. But, it's turned out for the best, Zeiger said. "We've spent much less time looking over our shoulder and looking at what federal government is doing. It enabled us to strike our own pathway."

For instance, he said, there have been political benefits. The state's teachers' unions were a huge driving force in helping to enact a new funding formula that gives a heavy weight to students in poverty. It would have been a lot harder to gin up union support for the change if the state education agency had been tusseling with them over teacher evaluation, Zeiger said.

Maybe even more importantly, he said, the shift to new standards has been relatively painless for California. "We've had very little contention around the common core and the shift to the new testing system" in part because it's happened separately from the types of teacher-evaluation changes called for in the waivers, Zeiger said. "The comments we've gotten on common core are: This is how I always wanted to teach."

(It's worth noting that California got permission from the Education Department to use new Common Core State Standards-aligned assessments with all of its students this school year, a move which civil rights advocates see as a total retreat from accountability.)

Vermont is also in the waiverless-and-happy-about-it camp. The Green Mountain State withdrew from the waiver-application process when it became clear the feds weren't going to go for its plan to cut back the frequency of state assessments. 

"We saw [waivers] as not moving towards flexibility. This was moving in the opposite direction of where we wanted to go," said John Fischer, the deputy secretary of education. Now the state is going forward with higher standards and common core tests created by the Smarter Balanced Assessment Consortium, and educators evaluations, without having to negotiate with the feds. "It's not like we stopped doing the work. We're just doing the work the way Vermonters want to do it."

Meanwhile, North Dakota superintendent Kirsten Baesler, also appears to have few regrets about remaining waiverless. In fact, she testified earlier this month before the Utah State Board of Education, when the decision of whether to extend the waiver was discussed.

North Dakota initially applied for a waiver, but also withdrew from the process when it came to an impasse with the feds over setting student achievement goals for its lowest-performing schools.

Ultimately, "the department of education did not budge," Baesler told the Utah board. So the state decided to back out of the process altogether. She said the concern was that North Dakota would be "exchanging one set of unattainable, unachievable expectations for another."

The Consequences

States that don't have waivers have to send letters to parents of students who attend schools that aren't hitting the NCLB law's achievement targets—which by now, is nearly every school. Zeiger doesn't think that's such a big deal. "Just about every school in the state now is technically failing under NCLB and we have sent out the notices," he said. "What we've discovered is if everyone gets one, nobody has gotten one."

Vermont, meanwhile, is making sure the public realizes that NCLB is way out of date. "This year, we'll announce [Adequate Yearly Progress] but we'll also announce that this is a system that has long passed its authorization," Fischer said. 

And states that don't have waivers also have to require districts to set aside 20 percent of federal Title I funds for school tutoring and choice—outdated remedies many analysts say never worked well in the first place.

But that's been "manageable" in California, Zeiger said, in part because federal funding is relatively small piece of the state's school financing puzzle. (He acknowledges that not every state is in the same boat.) And North Dakota districts were able to gain access to funds set aside for tutoring, in part because they act as their own tutoring providers. Many districts in Vermont do the same, Fischer said. 

"We didn't skip a beat," Fischer said.  

There's another side to the story here, of course. A cadre of California districts were dismayed that their state did not get a waiver and went ahead on and secured their own. And Seattle, the largest district in Washington state, wants its own district-level waiver, now that the feds have pulled the state's. More importantly, nearly every state with a waiver has applied for an extension. That means, that by and large, states must be pretty happy with them, or at least see them as a significant improvement over NCLB. 

What's the takeway for other states?

At least one Utah state board member said the experience of states like North Dakota is pretty instructive. 

The Beehive State has used Title I funds it previously set aside for tutoring and school choice for school turnarounds, and the state would have to find new money for those activities if it decides not to extend its waiver, David Thomas, the vice-chairman of the Utah state education board, said.  

"If the department treats us like they're treating North Dakota, I don't know that there's going to be a big issue of not having a waiver," he said. But if Utah is seen as "leaving the fold" and others follow, he worries there could be federal repercussions. 

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