No Child Left Behind Waivers Require Big Changes Fast

Ben Wieder
December 5, 2011

When New Jersey applied to the federal government for a waiver from the No Child Left Behind law, Governor Chris Christie used the opportunity to tout elements of his education reform agenda that had been languishing in the state legislature for months.

“For a new accountability system to be effective and successful in benefitting children, we must have all of the tools that are provided for in this legislation,” the Republican governor said in a statement released November 16. “It’s time for the New Jersey Legislature to step up with my administration, President Obama, Secretary Duncan and a national, bipartisan movement to act boldly and give every child the education they deserve.”

The legislation Christie was referring to includes several bills. One would tie decisions about teacher tenure and pay to student performance on standardized tests. Others would authorize more charter schools and allow the state’s lowest-performing schools to convert into charters.

New Jersey is among 11 states that recently applied for a waiver from the nearly 10-year-old federal education law. Another 28 say they plan to apply for waivers in a second round next year. If approved by the U.S. Department of Education, those states will be exempt from some requirements of No Child Left Behind. Most notably, they would be relieved from having to show all students achieving proficiency in reading and math by the 2013-14 school year.

In exchange for receiving a waiver, the states must present plans for meeting several goals. They include developing academic standards that prepare students for college or a vocation; creating statewide measures of student performance and plans for reforming schools that don’t meet them; and developing teacher and principal evaluation systems linked to student performance.

This isn’t the first time the Obama administration has tried to entice states into making significant changes in education policy. Obama’s Race to the Top competition awarded 10 states and Washington, D.C., money from a $4 billion pool for their plans to implement some of the same changes outlined in the waiver requirements. The offer of exempting states from what many see as the most onerous pieces of the No Child Left Behind law represents a new carrot — albeit one that comes without money.

The tight deadlines — the next one is in February — have states scrambling to make major decisions about the future of education in just a matter of months. In Iowa, for example, Republican Governor Terry Branstad has been refining a package of education recommendations to submit to the legislature before lawmakers convene in January. He has already changed course on that plan once. This month, Branstad pulled back from a controversial proposal to change the teacher evaluation system in a way that would have created four tiers of teachers, ranging from apprentice to master.

“We have a ten-year old law that we’ve all sort of arranged our policies around,” says Jason Glass, director of Iowa’s department of education. “That’s a major shift that we’re trying to accomplish in a short time.”

Meeting a ‘high bar’

For many states, Race to the Top gave them a head start on the waiver process, whether they were awarded federal money for their efforts or not. Kentucky, for example, was not among the Race’s winners. But Lisa Gross, a spokeswoman for the state’s department of education, says that legislation passed in advance of those applications will be the basis for the state’s February waiver plan.

“We’re very lucky that we had all of the basic infrastructure in place,” she says. “If you’re building this from the ground up, that’s going to be a struggle.”

The feds, too, learned lessons from Race to the Top. The Department of Education has taken heat for troubles experienced by some of the competition’s winners — all of whom have requested amendments to their original proposals and some of whom, including Hawaii and New York, have experienced major setbacks in trying to implement their award-winning plans.

Federal officials are still sketching out the details of how they will decide which states will get a waiver. But they say that monitoring the progress of states awarded a waiver will be a priority. “It’s going to be a bit of a challenge,” says Scott Sargrad, a senior policy advisor in the Department of Education’s Office of Planning, Evaluation, and Policy Development. “But we have extensive experience with monitoring in our other programs and are thoughtfully working through a protocol that ensures states are meeting a high bar.”

Just how high that bar will be has some states concerned. Pennsylvania officials are still considering whether or not they will apply for the waiver, which they see as an overhaul of No Child Left Behind, rather than merely a waiver from some of its requirements. California officials have indicated that they might remain on the sidelines during the waiver process because of concerns that new teacher evaluations and other changes will cost the state billions.

Meanwhile, states that are interested in the waivers are taking a hard look at their own rule books and looking ahead to the coming legislative sessions to determine what changes would require legislation. While New Jersey’s Christie is using the waiver process to rally support for his stalled plans, education officials say the executive has the power to make necessary changes whether or not those bills pass. “We would like to do it through legislation,” says Justin Barra, a spokesman for the state’s department of education, “but we don’t have to.”

That’s the case in Kansas, too. The state’s department of education is considering several options for a new accountability system to replace the old model, which was based on the standards of “adequate yearly progress” that formed the bedrock of No Child Left Behind. Also on the agenda is adding a student performance component to a new educator evaluation system that Kansas is piloting. But Kathy Toelkes, a spokeswoman for the department, says she thinks most of those changes can be made without passing legislation.

The situation is different in South Carolina. There, the legislature will have to give its seal of approval to changes made to the state’s educator evaluation system regardless of whether those changes come about through legislation or through regulations, according to state education department spokesman Jay Ragley.

Feds push collaborative effort

With so many big policy changes on the to-do list, it’s likely that many states interested in waivers won’t have everything wrapped up before the mid-February deadline for the next batch of applications. But federal officials emphasize that states don’t necessarily have to have fully implemented their plan in order to gain approval. States can be given conditional approval if their applications require further legislative or executive action.

In addition, U.S. Department of Education officials say they aren’t looking to reject plans outright. Rather, they plan on suggesting changes states should make. Judging of the applications will be more holistic than it was with Race to the Top, in which peer reviewers gave states points in each of the competition’s categories. For the waivers, reviewers will be looking at whether the state’s plan meets each of the required principles and hangs together as a whole, the department says.

To encourage states to anticipate potential future problems, federal officials are requiring states to get extensive feedback on their waiver applications from many groups — including teachers, parents, administrators and legislators. That process of seeking public comment and incorporating it into proposals has itself been a challenge for states pushing up against tight deadlines. But Department of Education officials say it’s a crucial step to ensure that states will be successful in implementing the plans they propose.

“If states haven’t done the work to get buy-in beforehand,” says Lexi Barrett, a policy advisor to the assistant secretary for the Office of Elementary and Secondary Education, “it’s likely going to be harder for them to follow through on their plans.”

This article originally appeared on, a nonpartisan, nonprofit news service of the Pew Center on the States that reports and analyzes trends in state policy.


Ben Wieder covers education on