balancing waiver and standard reform requirements leigh m. manasevit, esq. lmanasevit@bruman.com...
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Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq.lmanasevit@bruman.com
Brustein & Manasevit, PLLCFall Forum 2014
Waiver Resources
•Statute – NCLB, Section 9401
•Guidance – –Title I, Part A – July 2009
•Maintenance of Effort – See program statutes
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NCLB – What can be waived?The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT:•Allocation or distribution of funds to SEAs, LEAs, or other recipients of ESEA funds•Comparability•Supplement not supplant•Equitable services to private school students•Parent involvement
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NCLB – What can be waived (cont.)?
The Secretary may grant a waiver of any ESEA statutory or regulatory provision EXCEPT:•Civil rights•Maintenance of Effort•Charter School requirements•Use of funds for religion
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June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority1.ED has the authority to waive accountability provisions of Title I, Part A2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law
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Waivers • ED makes the announcement• September 23, 2011 Letter to Chiefs– NCLB became a barrier to reform– Opportunity to request flexibility• State• LEA• Schoolshttp://www2.ed.gov/policy/gen/guid/secletter/
110923.html
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Letter• Flexibility in exchange for rigorous
and comprehensive State plans that:–Improve educational outcomes–Close achievement gaps–Increase equity–Improve instruction
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“ESEA Flexibility” September 23, 2011
• 10 provisions subject to waiver1. 2013-2014 timeline –
Develop new ambitious AMO’s2. School improvement consequences: LEA not required to take currently
required improvement actions in Title I Schools3. LEA improvement identification: Not required to identify for
improvement LEA that fails 2 consecutive years4. Rural LEAs
• Small Rural School Achievement or Rural and Low Income program• Flexibility regardless of AYP status
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Waivers5. Schoolwide
Operate as schoolwide regardless of 40% poverty threshold if• SEA identified as a priority or focus school with
interventions consistent with turnaround principles6. School Improvement
• 1003a funds to serve any priority or focus school if SEA determines school in need of support
7. Reward Schools• Rewards to any reward school if the SEA determines
appropriate
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Waivers8. HQT improvement plans
• LEA that does not meet HQT no longer must develop an improvement plan– Flexibility in use of Title I and Title II funds
• LEA-SEA develop “more meaningful” evaluation and support systems which eventually will satisfy the HQT requirement
• SEA still must ensure poor and minority children not taught at higher rates by inexperienced, unqualified or out-of-field teachers
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Waivers9. Transferability
• Up to 100%, same programs10. SIG
• 1003g awards for any priority school
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Waivers
•Optional #11–21st Century Community Learning
Centers support expanded learning time during school day
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New Waiver #13• LEA may serve Title I
eligible priority high school with graduation rate under 60% without regard for rank and serve???
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New Waiver #14• New optional waiver from March
2013 FAQ Addendum• SEAs and LEAs would no longer
have to make AYP determinations• http://www2.ed.gov/policy/
eseaflex/faqaddendum.doc
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New Waiver #15• August 2013• Delays in implementing teacher evaluations• ED “willing to consider, on a State-by-State basis, requests to
permit a Window 1 or Window 2 SEA to have one additional year beyond the timeline required by ESEA flexibility — that is, to have until the 2016–2017 school year — to use the results of its teacher and principal evaluation and support systems to inform personnel decisions. ”
• Assistant Secretary's August 2, 2013 Letter
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New Waiver #16• September 2013• “Double-testing” waiver• States can test students in EITHER new pilot assessment
(SBAC/PARCC) OR current State assessment– As long as each student takes a “full” test
• States can also ask for moratorium on using these tests for accountability determinations (freezing accountablity)
• Assistant Secretary's September 17, 2013 Letter
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“In Exchange for…”Must meet 4 principles
1. College and Career Ready Standards – Develop and Implement:• Reading/Language Arts• Math• Aligned assessments measuring growth• ELP assessment aligned to #1
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“In Exchange for…”2. State Developed Differentiated Recognition,
Accountability and Support• Must develop system of Differentiated Recognition,
Accountability and Support– All LEAs– All Title I Schools
• Must consider Reading, Language Arts, and Math• All students• All subgroups• Graduation Rates
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• School Performance over time• New AMOs (ambitious)• State LEAs• Schools• Subgroups
• Incentives and recognitions• Dramatic systemic changes in lowest
performing schools
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“In Exchange for…”
3. Effective Instruction/Leadership• Commit to develop/adopt pilot and
implement• Teacher/principal evaluation
systems• Student Growth = “Significant
Factor”
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Title I, Part A Topics General Program Requirements Ranking and Serving Parental Involvement Set-asides Maintenance of Effort Comparability Supplement Not Supplant SES/Choice Equitable Services
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Title I Basics• Title I, Part A is a State-administered
program– ED grants funds to States based on
statutory formulas– State grants funds to LEAs based on
statutory formula– LEA allocates funds to schools based on
ranking and serving
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Title I Basics (cont.)
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• Allocations are based on poverty levels
• Service is based on academic need
Program Design
• Two models of Title I, Part A program:1. Targeted Assistance2. Schoolwide
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Eligible School Attendance Area• Percentage of children from low-income families
who reside in area . . . AT LEAST AS HIGH AS . . .
• Percentage of children from low-income families in LEA
• LEA has flexibility to serve any school attendance area with at least 35% poverty – even if percentage is lower than average of LEA
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Eligible School Attendance Areas• Residency Model
OR
• Enrollment Model
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Parental Involvement Overview• Annual meeting• Involvement in planning, review and
improvement of Title I programs• Provide parents timely information about
Title I programs• Coordinate with other programs, parent
resource centers
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Parental Involvement• 1% of LEA’s Title I allocation• 95% of 1% to schools• LEA may keep anything over 1% for
LEA-level parental involvement• Private school portion based on
entire amount
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LEA Reservations of Title I Funds• 20% Choice transportation & SES• 5% Teacher & paraprofessional
qualifications???? • 1% Parental involvement• 10% Professional development (if LEA
identified)
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Comparability • How is this calculated and why does
it matter?
Legal Authority:Title I Statute: §1120A(c)
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Supplement Not Supplant
• Surprisingly Not Greatly Affected by Declining Budgets!
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Consultation• LEA must provide “timely and meaningful”
consultation• Timely–Before the LEA makes any decisions
• Meaningful –Genuine opportunity for parties to express their views–Views seriously considered
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WAIVER STATES 41 States, the District of Columbia, Puerto Rico,
and California’s CORE districts Alabama, Alaska, Arkansas, Arizona, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin
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Waivers Withdrawn & Rejected
• Rejected:–California– Iowa
• Withdrawn: –North Dakota–Vermont
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“High Risk” & Revoked Waivers “High Risk”:
California’s CORE districts, September 2014 Revoked:
Washington, April 2014Failed to include student achievement in teacher and
principal evaluationsOklahoma, August 2014
Repealed Common Core and failed to replace it with equally rigorous standards
Implemented more rigorous standards in October and hopes to get a new waiver for 2015-2016
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Waiver Renewal
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35 States’ waivers will expire this summerAll have submitted renewal requests31 States, the District of Columbia, and California’s CORE districts have been granted waiver extensions
Secretary Duncan
• 2014 – 2015 transition year – teacher accountability• New 2015 -2016 deadline teacher accountability –
student test scores• See Deborah Delisle Letter – http://www2.ed.gov/policy/eseaflex/secretary-letters/
cssoltr8212014.html
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Teacher accountability• 17 States and the District of Columbia will likely request
the test score flexibility– Alabama– Arkansas– Connecticut– Delaware– Georgia– Idaho– Kansas– Maryland– Michigan
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Mississippi Missouri Ohio Oregon Rhode Island South Carolina South Dakota Utah
Teacher accountability• 12 States are not likely request the test score flexibility
– Arizona– Colorado– Florida– Kentucky– Massachusetts– Minnesota
• Hawaii, Indiana, and Wisconsin are unsure• West Virginia, Maine, and New Hampshire received their
waivers too late to be eligible for the flexibility
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New Mexico New York North Carolina Pennsylvania Tennessee Virginia
Teacher accountability
• Rep. George Miller (D-CA)– Ranking Member of the House Committee on Education and the
Workforce– Supporter of Common Core and accountability; One of the
architects of NCLB– Believes a “smart pause” is needed before tying teacher
evaluations to Common Core-aligned tests
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GAO study on Waivers• Senator Lamar Alexander (R – TN)• Representative John Kline (R – MN) • August 12, 2014 – requested study on – ED process – Issues for states– Accountability
• http://www.help.senate.gov/newsroom/press/release/?id=f9e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking
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Waiver Renewal Guidance – November 13, 2014
• Waiver renewal through 2017-2018 school year– Some States can get expedited 4-year renewal through
2018-2019• Applications due March 31, 2015– January deadline for States seeking expedited renewal
• New guidance document: http://www2.ed.gov/policy/elsec/guid/esea-flexibility/flex-renewal/flexguidrenewal2014.doc
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Renewal Guidance (cont.)
• New plans to identify and intervene in low-performing schools – Beyond what the States have already implemented– Describe, in detail, what “rigorous interventions” they are
using in schools with the biggest achievement gaps
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Renewal Guidance (cont.)• States must:– Update list of priority/focus schools– Ensure that evaluation systems do not allow schools
with persistent achievement gaps to obtain highest ratings
– Resolve any current implementation or non-compliance issues, monitoring findings, high-risk status designations, and other conditions
• NO requirement that States show their waiver plans/interventions are working
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Repealed Common Core
• Indiana (April)– Implemented standards very similar to Common Core
• Oklahoma (June)– Reverted to old standards
• South Carolina (May)– Using Common Core for 2014-2015– Drawing up new standards for 2015-2016
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Reconsidering Common Core• Missouri (July)– Using Common Core for at least two years– Reviewing and potentially revising for 2016-2017
• North Carolina (July)– Created a commission to review Common Core
and make recommendations for improvement– Common Core will be used at least for 2014-2015
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Growing Pressure to Repeal Louisiana
Gov. Bobby Jindal wants Common Core repealed Jindal had suspended the use of PARCC exams, saying
Superintendent John White and the State board did not properly follow contracting procedures
However, a judge lifted Jindal’s PARCC suspension Jindal has now filed a lawsuit against ED and Sec. Duncan,
claiming that offering ESEA waivers and Race to the Top went beyond Duncan’s legal authority and coerced States into adopting Common Core
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Growing Pressure to Repeal New York
More than 62,000 residents have signed on to an effort to create a new "Stop Common Core" ballot line to allow voters to voice their concerns about the state's new education standards
The ballot line received over 50,000 votes in the November election
New JerseyGov. Chris Christie has created a commission to review the
effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations
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Growing Pressure to Repeal Ohio
A committee in the Ohio House of Representatives has approved a bill to repeal Common Core
WisconsinGov. Scott Walker called for the legislature to repeal
Common Core in 2015Utah
Gov. Gary Herbert is having the state attorney general review the standards’ connections to the federal government
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PDK Gallup Poll on Educationhttp://pdkintl.org/noindex/PDK_Poll_46.pdf
• 60% American oppose Common Core – too restrictive for teachers
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Administration Weighs in on Disparate Discipline
Joint ED DOJ Letter, January 8, 2014
• Discipline:• Administration encourages policies that are fair and
avoid disparate impact• Impact high rates of suspension / expulsion• Disparate impact on minority students
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Disparate Discipline (cont.)
• ED aggressively focused on reducing disparaties• Past 5 years 1,500 complaints to OCR about
disparate discipline• http://www2.ed.gov/about/offices/list/ocr/
letters/colleague-201401-title-vi.html
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OCR Dear Colleague – Resource Equity
• Administration weighs in on resource equity–October 1, 2014• http://www2.ed.gov/about/offices/
list/ocr/letters/colleague-resourcecomp-201410.pdf
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OCR Dear Colleague (cont.)• Racial Disparities in access to:– Rigorous courses (Title VII of the Civil Rights Act)– Academic programs– Extracurricular activities– Stable workforce of effective• Teachers• Leaders• Support Staff
– Safe and appropriate school buildings– Modern technology– High quality instructional materials
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OCR Dear Colleague (cont.)• Reference to “students of color”– Black– Latino– Asian– Native Hawaiian, Pacific Islander– American Indian / Alaska Native– Students of 2 or more races
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New Guidance on ELL SWDs• July 18, 2014– Cover letter:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/cover-letter-els-w-disabilities-7-18-2014.pdf
– Q&A:
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/q-and-a-on-elp-swd.pdf
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Requirements:
• IDEA, SWDs included in all statewide assessments
• Titles I and III all ELL students tested for English proficiency
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How do ELL SWDs participate?
a) Regular, no accommodationb) Regular with accommodation c) Alternate
Determination made by IEP team
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SIG
• Proposed Regulations– September 8, 2014, Federal Register
• Allow 5 year SIG Awards• State determined school interlocution model• Add model with preschool and early grade focus• Continuous family engagement
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Disclaimer• This presentation is intended solely to provide general
information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.
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