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Last week, Washington state legislators left Olympia without approving any changes to its teacher evaluation law—changes essential for extending the state’s No Child Left Behind (NCLB) waiver beyond the current school year. If the state loses its waiver, what will it mean to go from NCLB to a waiver and back again?

If the state loses its waiver, what will it mean to go from NCLB to a waiver and back again?

Washington has always had a rocky waiver experience, and the reason why has always been how student growth is included in teacher evaluations. To be clear, Washington’s evaluation system includes student growth measures. It just doesn’t always include the right ones. Chiefly, local evaluations do not have to include student results on state assessments. This means that  evaluations are non-comparable between districts, and the measures used could vary significantly in their validity and reliability. And it certainly doesn’t comply with the U.S. Department of Education’s waiver requirements: Teacher evaluations must use student growth as a “significant factor,” and it must be measured through changes in a student’s score on state tests, when available.

Washington’s waiver predicament is a long time in the making. Unlike most, the state was only granted a one-year conditional waiver for the 2012-13 school year, because of the student growth issue. Then, Washington was deemed “high risk” but allowed to keep its waiver for a second year, because state leaders were “committed to seeking a legislative change” to align its evaluation system with the waiver guidelines.

Some state leaders, including Gov. Jay Inslee and State Superintendent Randy Dorn, were committed to a legislative fix, but opposition from the Washington Education Association and many Democratic legislators doomed the measure. In the end, Washington’s promises just didn’t translate into actions… and the state will (and frankly, should) lose its waiver as a result.

But does losing a waiver have to mean going back to NCLB? Here’s where the situation gets murky. NCLB set a tightly wound school accountability clock. Because of the law, states counted the number of years a school failed to meet student performance targets and applied a specific intervention to improve the school based on how long it had been struggling. What made waivers so appealing was that they stopped the clock: States created new targets, identified new schools as low-performing, and applied different interventions to them—ones that were supposed to be more comprehensive and better designed to meet schools’ needs.

Without a waiver, what happens to the clock? Let’s explore.

Reset It: With this option, all of Washington schools start with a clean slate next year. Based on this year’s test results, schools would be labeled in the first year of improvement in 2014-15 if their students, or any subgroup, failed to meet NCLB performance targets. This would undoubtedly be most schools in Washington, as the target would be set at 100 percent proficiency.

But there’s a catch: missing targets for one year carries no consequences under NCLB. Even if every Title I school in Washington was labeled as “failing” in 2014-15, the state wouldn’t be required to do anything to help them get better, and no Title I money would have to be set-aside to help them improve via school choice, tutoring programs, or corrective actions.  There would be no consequences until 2015-16, when schools entered year 2 of improvement. Even then, the consequences would be pretty light: School choice would be offered to low-income students. It would be 2019 before any Washington school implemented a restructuring plan.

Waiver Amnesia: Here, Washington schools don’t get a fresh start. Instead, NCLB targets—or what they would have been in 2012-13 and 2013-14—are retroactively applied. Combined with results from this year, schools could then be categorized under the old NCLB system as if it had been continuously enforced. A school in year 2 of improvement in 2011-12 that would have failed to meet NCLB targets in both waiver years would be labeled in year 5 of improvement for 2014-15. That school would have to begin drafting a plan to restructure.

Unlike a reset, this option carries immediate consequences. Many schools would be in improvement, and it’s unclear whether the state or districts would have the financial and human resources available to support them. It would also be a nightmare to explain to parents and the public. Worst of all, interventions implemented in schools under waivers—even if they were working—could cease without adequate resources or because NCLB requires Title I funds to be spent in other ways.

If these options don’t sound appealing, it’s because they aren’t. Not to the U.S. Department of Education, and not to Washington state. They’re illogical and could jeopardize the progress Washington has made, especially since the state has been doing a better job than most at helping their low-performing schools under waivers. Is there a middle ground between these two extremes?

I think so. In January, I suggested that the Department find a creative solution for states that lost waivers—a solution that wouldn’t let states off the hook for non-compliance, but wouldn’t force them to backtrack on positive reforms either. I call it the ex-waiver waiver. It could offer states continued flexibility for areas in which implementation has been going well (i.e. standards and school accountability, in Washington’s case), while revoking flexibility for other areas, especially those in which the state has not complied (i.e. teacher evaluation).

The ex-waiver waiver: a creative solution that doesn’t let states off the hook for waiver non-compliance, but doesn’t force them to backtrack on positive reforms either.

The ex-waiver waiver: Washington would set federal school performance goals to 100 percent proficiency for 2013-14 and all subsequent years, and would label schools as meeting or failing to meet these expectations using test results for “all students” and all student subgroups within a school, just like NCLB. This is the biggest ex-waiver waiver penalty, as it was one of the biggest incentives for states to turn to waivers in the first place. Washington would also revert back to “Highly Qualified Teacher” requirements, including improvement plans and required activities. Further, the state could lose other waiver flexibility, like those for rural districts, Title I funding flexibility, or rewards for high-performing schools.

However, Washington could apply to the Department to maintain flexibility for school improvement, justifying its request with new evidence of how schools have been making progress under waivers. Continued flexibility would allow the state to prioritize among all of its schools missing federal targets and continue to tailor the interventions that occur there, instead of following NCLB’s improvement clock. Essentially, the state could make its case for continuing to focus improvement resources on a more limited number of schools.

The ex-waiver waiver would come with trade-offs and risks. Federal officials must be careful to create a clear and fair process that preserves the best of states’ original waiver plans and is only used as a last resort. For instance, ex-waiver waivers should not be more attractive to states than waivers. Any loss of flexibility will need to be painful enough so that other states see compliance with the original requirements as preferable. And an ex-waiver waiver should not be offered in areas in which monitoring has shown a state is not meeting expectations unless it first addresses those concerns through demonstrated actions. Finally, the application process should be consistent, with decisions documented publicly or even peer-reviewed.

I admit that ex-waiver waivers are not a perfect solution, or even a fully formed one, and they certainly won’t make tracking waiver implementation any easier. But reverting back to NCLB’s time-based school improvement system just doesn’t make sense. Ex-waiver waivers may not be the only viable option, but here’s hoping we can find the middle ground.