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April 25, 2014 6:02 PM Night of the Living Fed(eral Education Law)

By Anne Hyslop

Yesterday, Washington became the first state to lose its waiver from No Child Left Behind. The undead law has claimed its first victim: after failing to keep its waiver promises around teacher evaluation reform, the Evergreen state must again comply with all the provisions of a zombie NCLB this fall.

With NCLB reauthorization unlikely in a polarized Congress, the Obama administration turned to waivers in 2011 to offer states relief from some of the standards-based education law’s most outmoded provisions. But in exchange, states committed to adopt a suite of reforms, spanning standards, tests, school accountability, and teacher evaluations. And if they didn’t follow through, a state could lose its waiver and revert back to the not-quite-dead federal law.

At first, I didn’t believe in a zombie NCLB apocalypse. Because Washington had done a good job with its new accountability system and supporting low-performing priority and focus schools, I thought the state might be able to continue to differentiate the kinds of interventions schools received, even in a return to NCLB and the dreaded 100 percent proficiency goal. If schools were identified as not making Adequate Yearly Progress again, why couldn’t Washington have some leeway in how it improved them? Why couldn’t the state continue doing the things that were working under waivers? Bellwether’s Chad Aldeman floated a similar idea, noting that it would build upon precedent from Differentiated Accountability pilots offered to states during the Bush administration.

But the U.S. Department of Education isn’t offering a compromise between NCLB and waivers. There are no ex-waiver waivers to soften the blow for states — there are just ex-waivers.

This means that all of Washington’s schools will receive an AYP determination in the fall, and any Title I school failing to make AYP will be placed in improvement. The target for making AYP will be 100 percent student proficiency for all students and student subgroups. Further, the particular sanction applied to schools not making AYP will be based on whatever sanction the school had when the state first earned its waiver — all the way back in 2011-12. It’s like the last two years didn’t happen.

In other words, a school that had been planning for restructuring in 2011-12 before waivers and that misses AYP this year under a revived NCLB will start implementing that restructuring plan now, regardless of what happened in the interim. Hopefully, schools will at least update these restructuring plans to reflect current student performance and new priorities, like Common Core implementation, instead of dusting off the cobwebs from the 2011-12 version.

Of course, this approach could also mean that some priority and focus schools will go without school improvement help next year. As I found in analyzing the transition from NCLB to waivers, many priority and focus schools were previously unidentified by NCLB. In Oregon, for example, over three-quarters of priority and focus schools were not in NCLB improvement. Could yesterday’s decision stymie improvement efforts and cut-off needed Title I dollars to similar priority and focus schools in Washington—schools that are indeed low-performing, but whose needs were unrecognized by NCLB two years ago?

To be clear, Washington can maintain its waiver accountability system… at the state level. For instance, it can name priority and focus schools and plans to do so next week. But this will be secondary to the NCLB system. Washington must set its student performance goal to 100 percent proficiency and reinstate NCLB’s AYP-based school improvement regimen. And it must send those letters about school choice and supplemental education services to families in Title I schools that fail to make AYP. And districts must set-aside 20 percent of their Title I budgets for those purposes, even if it squeezes funding from other priorities.

In short, dealing with a zombie NCLB doesn’t sound like fun. It sounds like a mess. If I were another “high risk” state, I’d try to avoid following in Washington’s footsteps. And if I were waffling on whether to extend my waiver, I’d go with the extension.

But do other states deserve to be spared Washington’s fate? Kansas, another “high risk” state, is also struggling with teacher evaluation reform. And the situation in Washington is almost rosy compared to the dysfunction on display in IndianaOklahomaSouth Carolina and elsewhere. Waiver states are supposed to implement college- and career-ready standards this year and an aligned assessment next year. For most states, that originally meant the Common Core and one of the tests offered by the Smarter Balanced Assessment Consortium or Partnership for Assessment of Readiness for College and Careers. Yet bailing from the standards or test consortia hasn’t placed any waivers at risk — even when the state doesn’t have a backup college- and career-ready testing option and is scrambling to find a viable alternative.

Obviously, going after waiver states on Common Core would be a political nightmare for the Department of Education — and further provoke those arguing that the new standards amount to little more than a federal power grab. But given the sorry condition of state implementation, it is difficult to justify why Washington is facing zombie NCLB alone.

That’s why the Department would be well served to articulate how Washington’s situation is unique from other laggard waiver states, a point where AEI’s Rick Hess and I agree. Moreover, the Department should use the waiver extension process to honestly evaluate whether states that have delayed their efforts or flip-flopped on key promises have the will, authority, and capacity to continue with flexibility. If they don’t, they should join Washington in ex-waiver dystopia.

Anne Hyslop is a policy analyst with New America’s Education Policy Program. Find her on Twitter: @afhyslop.

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