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Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq. Brustein & Manasevit, PLLC Fall Forum 2014.

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Presentation on theme: "Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq. Brustein & Manasevit, PLLC Fall Forum 2014."— Presentation transcript:

1 Balancing Waiver and Standard Reform Requirements Leigh M. Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC Fall Forum 2014

2 Waiver Resources Statute – NCLB, Section 9401 Guidance – – Title I, Part A – July 2009 Maintenance of Effort – See program statutes Brustein & Manasevit, PLLC 2

3 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 Brustein & Manasevit, PLLC 3

4 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 Brustein & Manasevit, PLLC 4

5 June 28, 2011 Congressional Research Service (CRS) Report on Secretary of Education’s Waiver Authority 1.ED has the authority to waive accountability provisions of Title I, Part A 2.It is unclear if the Secretary can condition a waiver on other action(s) not required by law Brustein & Manasevit, PLLC 5

6 ED Announcement on Waivers Brustein & Manasevit, PLLC 6

7 Waivers ED makes the announcement September 23, 2011 Letter to Chiefs – NCLB became a barrier to reform – Opportunity to request flexibility State LEA Schools http://www2.ed.gov/policy/gen/guid/secletter/110 923.html Brustein & Manasevit, PLLC 7

8 Letter Flexibility in exchange for rigorous and comprehensive State plans that: – Improve educational outcomes – Close achievement gaps – Increase equity – Improve instruction Brustein & Manasevit, PLLC 8

9 “ESEA Flexibility” September 23, 2011 10 provisions subject to waiver 1.2013-2014 timeline – Develop new ambitious AMO’s 2.School improvement consequences: LEA not required to take currently required improvement actions in Title I Schools 3.LEA improvement identification: Not required to identify for improvement LEA that fails 2 consecutive years 4.Rural LEAs Small Rural School Achievement or Rural and Low Income program Flexibility regardless of AYP status Brustein & Manasevit, PLLC 9

10 Waivers 5.Schoolwide Operate as schoolwide regardless of 40% poverty threshold if SEA identified as a priority or focus school with interventions consistent with turnaround principles 6.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 Brustein & Manasevit, PLLC 10

11 Waivers 8.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 Brustein & Manasevit, PLLC 11

12 Waivers 9.Transferability Up to 100%, same programs 10. SIG 1003g awards for any priority school Brustein & Manasevit, PLLC 12

13 Waivers Optional #11 – 21 st Century Community Learning Centers support expanded learning time during school day Brustein & Manasevit, PLLC 13

14 New Waiver #12 No AYP determination for LEAs or Schools Brustein & Manasevit, PLLC 14

15 New Waiver #13 LEA may serve Title I eligible priority high school with graduation rate under 60% without regard for rank and serve??? Brustein & Manasevit, PLLC 15

16 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/eseafle x/faqaddendum.doc http://www2.ed.gov/policy/eseafle x/faqaddendum.doc Brustein & Manasevit, PLLC 16

17 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 Brustein & Manasevit, PLLC 17

18 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 Brustein & Manasevit, PLLC 18

19 “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 Brustein & Manasevit, PLLC 19

20 “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 Brustein & Manasevit, PLLC 20

21 School Performance over time New AMOs (ambitious) State LEAs Schools Subgroups Incentives and recognitions Dramatic systemic changes in lowest performing schools Brustein & Manasevit, PLLC 21

22 “In Exchange for…” 3.Effective Instruction/Leadership Commit to develop/adopt pilot and implement Teacher/principal evaluation systems Student Growth = “Significant Factor” Brustein & Manasevit, PLLC 22

23 “In Exchange for…” 4.Reduce duplication and unnecessary burden Brustein & Manasevit, PLLC 23

24 BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER Brustein & Manasevit, PLLC 24

25 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 Brustein & Manasevit, PLLC 25

26 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 Brustein & Manasevit, PLLC 26

27 Title I Basics (cont.) Brustein & Manasevit, PLLC 27 Allocations are based on poverty levels Service is based on academic need

28 Program Design Two models of Title I, Part A program: 1.Targeted Assistance 2.Schoolwide Brustein & Manasevit, PLLC 28

29 Ranking and Serving Schools Under Section 1113 Brustein & Manasevit, PLLC 29

30 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 Brustein & Manasevit, PLLC 30

31 Eligible School Attendance Areas Residency Model OR Enrollment Model Brustein & Manasevit, PLLC 31

32 Parental Involvement Brustein & Manasevit, PLLC 32

33 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 Brustein & Manasevit, PLLC 33

34 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 Brustein & Manasevit, PLLC 34

35 LEA Reservations of Title I Funds 20% Choice transportation & SES 5% Teacher & paraprofessional qualifications???? 1% Parental involvement 10% Professional development (if LEA identified) Brustein & Manasevit, PLLC 35

36 Maintenance of Effort Most Directly Affected by Declining Budgets Brustein & Manasevit, PLLC 36

37 Comparability How is this calculated and why does it matter? Legal Authority: Title I Statute: §1120A(c) Brustein & Manasevit, PLLC 37

38 Supplement Not Supplant Surprisingly Not Greatly Affected by Declining Budgets! Brustein & Manasevit, PLLC 38

39 Brustein & Manasevit, PLLC 39 Equitable Services for Private School Students

40 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 Brustein & Manasevit, PLLC 40

41 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 Brustein & Manasevit, PLLC 41

42 Waivers Pending Wyoming Brustein & Manasevit, PLLC 42

43 Waivers Withdrawn & Rejected Rejected: – California – Iowa Withdrawn: – North Dakota – Vermont Brustein & Manasevit, PLLC 43

44 “High Risk” & Revoked Waivers  “High Risk”:  California’s CORE districts, September 2014  Revoked:  Washington, April 2014  Failed to include student achievement in teacher and principal evaluations  Oklahoma, 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 Brustein & Manasevit, PLLC 44

45 Non-Waiver States Montana & Nebraska have not applied for a waiver Brustein & Manasevit, PLLC 45

46 Waiver Renewal – Arizona – Arkansas – Colorado – Connecticut – Delaware – Florida – Georgia – Idaho – Indiana – Kansas – Kentucky – Maryland – Massachusetts – Michigan – Minnesota – Mississippi – Missouri – Nevada – New Jersey – New Mexico – New York – North Carolina – Ohio – Oregon – Rhode Island – South Carolina – South Dakota – Tennessee – Utah – Virginia – Wisconsin Brustein & Manasevit, PLLC 46  35 States’ waivers will expire this summer  All have submitted renewal requests  31 States, the District of Columbia, and California’s CORE districts have been granted waiver extensions

47 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 http://www2.ed.gov/policy/eseaflex/secretary- letters/cssoltr8212014.html Brustein & Manasevit, PLLC 47

48 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 Brustein & Manasevit, PLLC 48  Mississippi  Missouri  Ohio  Oregon  Rhode Island  South Carolina  South Dakota  Utah

49 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 Brustein & Manasevit, PLLC 49  New Mexico  New York  North Carolina  Pennsylvania  Tennessee  Virginia

50 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 Brustein & Manasevit, PLLC 50

51 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=f9 e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking http://www.help.senate.gov/newsroom/press/release/?id=f9 e1224c-21e6-4f1a-9602-ff4e361ac2dc&groups=Ranking Brustein & Manasevit, PLLC 51

52 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 http://www2.ed.gov/policy/elsec/guid/esea-flexibility/flex- renewal/flexguidrenewal2014.doc Brustein & Manasevit, PLLC 52

53 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 Brustein & Manasevit, PLLC 53

54 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 Brustein & Manasevit, PLLC 54

55 Common Core

56 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 Brustein & Manasevit, PLLC 56

57 Adopted Slight Changes, But No Repeal Florida (February) Brustein & Manasevit, PLLC 57

58 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 Brustein & Manasevit, PLLC 58

59 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 Brustein & Manasevit, PLLC 59

60 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 Jersey  Gov. Chris Christie has created a commission to review the effectiveness of Common Core assessments, and the assessments now have less importance in teacher evaluations Brustein & Manasevit, PLLC 60

61 Growing Pressure to Repeal  Ohio  A committee in the Ohio House of Representatives has approved a bill to repeal Common Core  Wisconsin  Gov. Scott Walker called for the legislature to repeal Common Core in 2015  Utah  Gov. Gary Herbert is having the state attorney general review the standards’ connections to the federal government Brustein & Manasevit, PLLC 61

62 PDK Gallup Poll on Education http://pdkintl.org/noindex/PDK_Poll_46.pdf http://pdkintl.org/noindex/PDK_Poll_46.pdf 60% American oppose Common Core – too restrictive for teachers Brustein & Manasevit, PLLC 62

63 DISCIPLINE – DISPARATE IMPACT CONTINUES AS HIGH PRIORITY Brustein & Manasevit, PLLC 63

64 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 Brustein & Manasevit, PLLC 64

65 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/letter s/colleague-201401-title-vi.html http://www2.ed.gov/about/offices/list/ocr/letter s/colleague-201401-title-vi.html Brustein & Manasevit, PLLC 65

66 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 http://www2.ed.gov/about/offices/list/ ocr/letters/colleague-resourcecomp- 201410.pdf Brustein & Manasevit, PLLC 66

67 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 Brustein & Manasevit, PLLC 67

68 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 Brustein & Manasevit, PLLC 68

69 New Guidance on ELL SWDs July 18, 2014 – Cover letter: http://www2.ed.gov/policy/speced/guid/idea/m emosdcltrs/cover-letter-els-w-disabilities-7-18- 2014.pdf http://www2.ed.gov/policy/speced/guid/idea/m emosdcltrs/cover-letter-els-w-disabilities-7-18- 2014.pdf – Q&A: http://www2.ed.gov/policy/speced/guid/idea/m emosdcltrs/q-and-a-on-elp-swd.pdf http://www2.ed.gov/policy/speced/guid/idea/m emosdcltrs/q-and-a-on-elp-swd.pdf Brustein & Manasevit, PLLC 69

70 Requirements: IDEA, SWDs included in all statewide assessments Titles I and III all ELL students tested for English proficiency Brustein & Manasevit, PLLC 70

71 How do ELL SWDs participate? a)Regular, no accommodation b)Regular with accommodation c)Alternate Determination made by IEP team Brustein & Manasevit, PLLC 71

72 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 Brustein & Manasevit, PLLC 72

73 Questions? Brustein & Manasevit, PLLC 73

74 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. Brustein & Manasevit, PLLC 74


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