Some States Still Skeptical of NCLB Waivers

States that haven't applied for waivers are worried about an overreach of federal influence on their education policy.

Now that a large majority of states (37 plus the District of Columbia) have applied for waivers from No Child Left Behind (NCLB) in exchange for adopting policies outlined by the U.S. Department of Education, attention turns to the dozen or so states that have not.

A few -- Hawaii, Maine, New Hampshire and North Dakota -- have already formally informed the department that they will apply by Sept. 6, the third deadline for waiver applications. According to department officials, an additional application opportunity beyond Sept. 6 is possible, but unlikely given the small number of states remaining that haven't applied for a waiver. Those states are therefore left with a degree of uncertainty as they decide how to move forward.

If states don’t receive a waiver, and no NCLB reauthorization law is passed by Congress, states could be subject to federal sanctions if they fail to meet the 100 percent proficiency deadline in 2014. The target is widely viewed as unrealistic and even impossible. If states do receive a waiver, they must commit to several reforms dictated by the Obama administration, such as establishing teacher evaluation and accountability systems, and moving towards a set of standards to ensure that students are college- and career-ready. This leaves open the possibility that states will pursue one course of action only to have Congress or a new administration adopt dramatically different policies.

In conversations with Governing, officials from several states yet to apply for waivers cited these concerns as part of their state’s apprehension. There was also a philosophical divide, as states are uneasy about agreeing to requirements set by the federal government in exchange for flexibility. With the exceptions of California and West Virginia, states that haven’t applied for a waiver or indicated an intention to do so have Republican majorities in the statehouse.

“We’re concerned that there are some strings attached,” said Debbie Ratcliffe, director of communications for the Texas Education Agency. For example, states receiving waivers must commit to college- and career-ready standards; some view those parameters, also included in Race To The Top requirements, as a veiled endorsement of the Common Core State Standards. Texas is one of the few states that has not joined the Common Core initiative. It also did not apply for Race to the Top funds.

The state is concerned that the waivers indicate movement toward a more nationalized system, Ratcliffe said, by essentially establishing federal guidelines for academic standards and teacher evaluations. “We’re not comfortable with that,” she said.

Although Texas leaves open the possibility of eventually applying for a waiver, Ratcliffe acknowledged that she was unsure what would have to happen for the state to consider submitting an application.

Nebraska appears similarly entrenched in its opposition to applying for a waiver. The state “would be trading one set of federal requirements for another set of federal requirements,” said Betty Van Deventer, spokesperson for the state education department. “We don’t consider that a true waiver or view it as beneficial for Nebraska schools or our students. The waiver process itself is lengthy, time-consuming and expensive.”

Like Texas, Nebraska is missing key elements of the waiver requirements: a statewide accountability system, a teacher evaluation system and it has not adopted the Common Core standards.

Pennsylvania is taking an alternative route to getting the flexibility it wants. The state applied in January to amend its Adequate Yearly Progress (AYP) targets and freeze them for two years. Applying for an amendment isn't the same as applying for a full waiver as NCLB already gives Education Secretary Arne Duncan authority to grant some flexibility to states in meeting AYP targets, said Timothy Eller, press secretary for the Pennsylvania Department of Education. Pennsylvania has not received a decision since the Jan. 9 filing, Eller said. Montana also plans to apply for an amendment to adjust its AYP targets, Denise Juneau, state superintendent, told Governing.

Pennsylvania officials are pursuing an amendment because they hold similar concerns about the NCLB waivers as other states in their position. “We don’t view the waiver program as a full waiver program,” Eller said. “In terms of what’s being offered, we have some concerns with that… And we believe changes need to be done through the legislative process.”

NCLB reauthorization bills have passed out of committee in both the House and Senate, but important differences remain. There is also skepticism that Congress can pass comprehensive legislation during a contentious election year. “We’re not banking on it,” Texas’s Ratcliffe said of her state’s outlook on reauthorization.

Like Pennsylvania and Montana, California hopes to gain some flexibility, so schools won't be labeled failing for missing AYP targets. The difference is that California has stated its committment to the goals of the NCLB waiver program – the state is participating in Common Core and is currently working to improve its accountability system. But the California Department of Education found that it would cost too much to implement all the provisions that a full waiver would require given the state’s fiscal situation. Instead, California is applying for a different waiver that provides limited flexbility from NCLB. The state board is expected to hold a hearing on the waiver this week.

West Virginia seems to be moving toward filing an application for a full waiver. The state education department released a statement last week indicating that they would apply by the Sept. 6 deadline, although the Education Department hasn’t received a formal letter of intent, a department spokesperson confirmed to Governing.

The state always intended to ask for a waiver, said state Associate Superintendent Robert Hull, but lacked a statewide teacher evaluation system when the program was first announced last fall. In the time since, West Virginia has piloted a new evaluation system in 25 schools, and legislation is moving through the statehouse. Hull expects the bill will be signed by Gov. Earl Ray Tomblin, who lobbied for its passage, when it reaches his desk.

The state sees the waiver program as an important opportunity, Hull said. "Under the current system, it's rather restrictive," he said, referring to the focus on reading and math in the law. "We feel that there is much more going on in schools and what we value in our schools that need to be a part of this."

The map below, based on information from the Education Department, marks each state's position in the NCLB waiver process.

Application approved
Application approval pending
Intend to submit application
No application submitted

NOTE: Alaska has not submitted an application and Hawaii intends to submit one. Information is current as of March 2012.

Dylan Scott is a GOVERNING staff writer.