1. WHAT ESEA TITLE I REQUIREMENTS REMAIN IN THE LAND OF THE WAIVER? Brustein & Manasevit, PLLC1 Leigh M. Manasevit, Esq. lmanasevit@bruman.com Brustein & Manasevit, PLLC Spring Forum 2014

2. Waiver Resources Statute – NCLB, Section 9401 Guidance – Title I, Part A – July 2009 Maintenance of Effort – See program statutes Brustein & Manasevit, PLLC2

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, PLLC3

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, PLLC4

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, PLLC5

6. ED Announcement on Waivers Brustein & Manasevit, PLLC6

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/se cletter/110923.html Brustein & Manasevit, PLLC7

8. Letter Flexibility in exchange for rigorous and comprehensive State plans that: – Improve educational outcomes – Close achievement gaps – Increase equity – Improve instruction Brustein & Manasevit, PLLC8

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, PLLC9

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, PLLC10

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, PLLC11

12. Waivers 9.Transferability Up to 100%, same programs 10. SIG 1003g awards for any priority school Brustein & Manasevit, PLLC12

13. Waivers Optional #11 21 st Century Community Learning Centers support expanded learning time during school day Brustein & Manasevit, PLLC13

14. New Waiver #12 No AYP determination for LEAs or Schools Brustein & Manasevit, PLLC14

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, PLLC15

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/ese aflex/faqaddendum.doc http://www2.ed.gov/policy/ese aflex/faqaddendum.doc Brustein & Manasevit, PLLC16

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, PLLC17

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, PLLC18

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, PLLC19

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, PLLC20

21. – School Performance over time – New AMOs (ambitious) State LEAs Schools Subgroups – Incentives and recognitions – Dramatic systemic changes in lowest performing schools Brustein & Manasevit, PLLC21

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, PLLC22

23. “In Exchange for…” 4.Reduce duplication and unnecessary burden Brustein & Manasevit, PLLC23

24. Waiver States 43 States, Puerto Rico, the District of Columbia, CORE districts in California Alabama, Alaska, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, 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, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin Brustein & Manasevit, PLLC24

25. Waivers Pending Iowa (approval unlikely – was rejected once in June 2013) Wyoming Bureau of Indian Education Brustein & Manasevit, PLLC25

26. Waivers Withdrawn & Rejected Rejected: California Iowa Withdrawn: North Dakota Vermont Brustein & Manasevit, PLLC26

27. Non-Waiver States Montana & Nebraska have not applied for a waiver Brustein & Manasevit, PLLC27

28. Center on Education Policy Waiver Report - March 2013 Report found that States are supportive of the waivers because of the relief from some of the burdensome requirements of ESEA States were concerned with the effect of ESEA reauthorization on waivers including confusion and additional costs of implementing accountability systems and developing new teacher evaluation systems 24 of 38 States identified that costs could be greater under ESEA waivers 11 of 34 States and D.C. that have received waivers have needed to revise or implement new teacher and principal evaluations One State official commented on ED’s quantity of revisions to their application as “erred on the side of ridiculous” http://www.cep- dc.org/cfcontent_file.cfm?Attachment=McMurrerYoshioka%5FReport %5FStatesPerspectivesonWaivers%5F030413%2Epdf Brustein & Manasevit, PLLC28

29. Alliance for Excellent Education ESEA Waivers Study - February 2013 Study concluded that a majority of waiver States have ignored Federal regulations to promote accountability with high school graduation rates 2008 – ED regulations required States to measure high school graduation rates as an accountability measure, a four-year cohort rate 23 waiver States were permitted to use an accountability system inconsistent with the regulations by including GED certificates and drop out rates 12 States decreased the weight of graduation rates to less than 25% http://www.all4ed.org/files/ESEAWaivers.pdf Brustein & Manasevit, PLLC29

30. New America Foundation Waiver Report – December 2013 “It’s All Relative: How NCLB Waivers Did — And Did Not — Transform School Accountability” Studied implementation of waivers in sixteen States only Eleven states classified fewer priority or focus schools in 2012– 13 than the number of schools identified for NCLB improvement in 2011-12 On average, two-thirds of the schools identified by NCLB were not among the bottom 15 percent of the state’s waiver accountability plan ED included “safeguards” to ensure certain kinds of schools were typically priority or focus schools: high schools with low graduation rates and schools receiving School Improvement Grants (SIG). But “these safeguards did not necessarily result in a greater emphasis on high school accountability or the consistent identification of SIG schools.” http://newamerica.net/sites/newamerica.net/files/policydocs/I tsAllRelative-12-17-2013.pdf http://newamerica.net/sites/newamerica.net/files/policydocs/I tsAllRelative-12-17-2013.pdf Brustein & Manasevit, PLLC30

31. ED Monitoring ED monitored State Waivers SY 2012-2013 (monitoring for extensions to be in 2014-15) 3 components: “Part A”- ongoing to include technical assistance and implementation of waiver components; Part B – “deeper look” at the SEA’s implementation of Principles 1, 2, and 3, as well as follows-up on any “next steps” from Part A Monitoring. “Part C” for waiver extensions Flexibility Monitoring Part A Protocol: http://www.ed.gov/esea/flexibility/documents/monitori ng-part-a-protocol-acc.doc http://www.ed.gov/esea/flexibility/documents/monitori ng-part-a-protocol-acc.doc Part B Monitoring Plan: http://www2.ed.gov/policy/eseaflex/monitoring/part-b- plan.doc http://www2.ed.gov/policy/eseaflex/monitoring/part-b- plan.doc Brustein & Manasevit, PLLC31

32. Additional Waivers “CORE” District waiver Approved in August 2013 for Nine California school districts Specialized waiver process through ED – no “official” application Concerns among States about State responsibility/involvement Sacramento backed out in April 2014 due to issues with teacher evaluations Brustein & Manasevit, PLLC32

33. What’s Next for Waivers Renewals – States that submitted applications in first two windows can renew for two more years Starting January 2014 – Must report on progress, show compliance with four “principles for reform” High-Risk Waivers – States having problems with teacher/principal evaluation systems (all got conditional approval) – Kansas, Oregon, Arizona, Washington – ED says that if not in compliance by end of SY 2013- 14, will revoke waivers – What happens to a State if ED revokes waiver???? Brustein & Manasevit, PLLC33

34. BASIC ESEA TITLE I, PART A REQUIREMENTS NOT SUBJECT TO WAIVER Brustein & Manasevit, PLLC34

35. 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, PLLC35

36. 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, PLLC36

37. Title I Basics (cont.) Brustein & Manasevit, PLLC37 Allocations are based on poverty levels Service is based on academic need

38. Program Design Two models of Title I, Part A program: 1.Targeted Assistance 2.Schoolwide Brustein & Manasevit, PLLC38

39. Targeted Assistance: Focus on Identified Students Identify “Title I students” and provide with supplemental services Ensure Title I $ solely used to benefit identified students For schools ineligible or choose not to operate schoolwide Brustein & Manasevit, PLLC39

40. Who is a Title I student?  Students identified as failing or at risk of failing State standards: NOT based on poverty! Brustein & Manasevit, PLLC40

41. Eligible Title I students Student eligibility is based on: – Multiple – Educationally related – Objective criteria – Developed by LEA If preschool - grade 2, judgment of teacher, interviews with parents, and other developmentally appropriate means Brustein & Manasevit, PLLC41

42. Automatically Eligible  If student in the previous 2 years received services in  Head Start  Even Start  Early Reading First or  Migrant Part C  If the student is currently eligible under  Neglected and Delinquent or Homeless  Migrant (not receiving Part C services), IDEA and LEP students are eligible on the same basis as any other student Brustein & Manasevit, PLLC42

43. Recordkeeping Records must be maintained that document that Part A funds are spent on activities and services for only Title I, Part A participating students Brustein & Manasevit, PLLC43

44. Schoolwide Programs Combine Federal, State, and local programs (sometimes funds) to upgrade the entire educational program However, in most States the SEA must approve consolidation! All students in schoolwide schools may be served by Title I employees Pre-requisite: 40% poverty Brustein & Manasevit, PLLC44

45. Ranking and Serving Schools Under Section 1113 Brustein & Manasevit, PLLC45

46. Eligible School Attendance Areas 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, PLLC46

47. Eligible School Attendance Areas Residency Model OR Enrollment Model Brustein & Manasevit, PLLC47

48. Ranking and Serving Exceeding 75% poverty – Strictly by poverty – Without regard to grade span At or below 75% poverty – May rank by grade span Serve strictly in order of rank! Brustein & Manasevit, PLLC48

49. Allocation to Schools After set-asides Allocate to schools based on total # of low income residing in area (including nonpublic) Discretion on amount of PPA Higher PPAs must be in higher schools on ranked list No regard to SWP or TAS Brustein & Manasevit, PLLC49

50. Exception: Rank & Serve “Skip” school, if: 1.Comparability met 2.Receiving supplemental State/local funds used in Title I-like program 3.Supp. State/local funds meet or exceed amount would be received under Title I Still count and serve nonpublic in area Brustein & Manasevit, PLLC50

51. Parental Involvement Brustein & Manasevit, PLLC51

52. 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, PLLC52

53. Parental Notifications Annual LEA report cards Parents’ “right to know” of teacher qualifications Highly qualified teacher status Achievement levels on State academic assessments School improvement status School Choice notice as a result of school improvement status Supplemental educational services as a result of school improvement status Schoolwide program authority Brustein & Manasevit, PLLC53

54. Parental Involvement Policies LEA parental involvement policy School parental involvement policy School/Parent compact Brustein & Manasevit, PLLC54

55. 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, PLLC55

56. Brustein & Manasevit, PLLC56 Other LEA Set-Asides; Maintenance of Effort, Comparability and Supplement Not Supplant

57. 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, PLLC57

58. 1% Parental Involvement Reserve at least 1% 95% of 1% to schools If reserve >1%, still only need to distribute 95% of first 1% to schools But ALL reserved subject to equitable participation for private school students Brustein & Manasevit, PLLC58

59. 10% Professional Development If the LEA is identified for improvement – May include any teachers that serve Title I students at some point during the day – “Title I funds cannot be used to pay for professional development of staff who do not serve any Title I students at some point during the school day.” Ray Simon guidance letter (2004) – Question: Include teachers who do not serve any Title I students if there is no additional cost to the Title I program? Brustein & Manasevit, PLLC59

60. LEA Reservations (cont.)  No % specified  Administration (public & private)  Private school students  Homeless  To serve students in non-Title I schools  Neglected & Delinquent (N&D)  To serve students in N&D institutions or day facilities  Incentives to teachers in ID’d schools (< 5%)  Professional development  “Other authorized activities” Brustein & Manasevit, PLLC60

61. If No % Specified “Necessary and reasonable” amount – Example: Administration Government Accountability Office found national average is around 10% – Example: Homeless Shelter counts Match McKinney-Vento subgrant Brustein & Manasevit, PLLC61

62. Maintenance of Effort Most Directly Affected by Declining Budgets Brustein & Manasevit, PLLC62

63. MOE The combined fiscal effort per student or the aggregate expenditures of the LEA From State and local funds From preceding year must not be less than 90% of the second preceding year Brustein & Manasevit, PLLC63

64. MOE: Preceding Fiscal Year Need to compare final financial data Compare “immediate” PFY to “second” PFY EX: To receive funds available July 2009, compare 2007-08 school year to 2006- 07 school year Brustein & Manasevit, PLLC64

65. MOE: Failure under NCLB Brustein & Manasevit, PLLC65 SEA must reduce amount of allocation in the exact proportion by which LEA fails to maintain effort below 90% Reduce all applicable NCLB programs, not just Title I

66. MOE: Waiver USDE Secretary may waive if: – Exceptional or uncontrollable circumstances, such as natural disaster OR – Precipitous decline in financial resources of the LEA Brustein & Manasevit, PLLC66

67. ED Waivers To State to Grant to LEAs Brustein & Manasevit, PLLC67

68. Comparability How is this calculated and why does it matter? Legal Authority: Title I Statute: §1120A(c) Brustein & Manasevit, PLLC68

69. General Rule - §1120A(c) An LEA may receive Title I, Part A funds only if it uses State and local funds to provide services in Title I schools that, taken as a whole, are at least comparable to the services provided in non-Title I schools. If all are Title I schools, all must be “substantially comparable.” Brustein & Manasevit, PLLC69

70. Timing Issues Guidance: Must be annual determination YET, LEAs must maintain records that are updated at least “biennially” (1120A(c)(3)(B)) Review for current year and make adjustments for current year Brustein & Manasevit, PLLC70

71. Supplement Not Supplant Surprisingly Not Greatly Affected by Declining Budgets! Brustein & Manasevit, PLLC71

72. Supplement Not Supplant Federal funds must be used to supplement, and in no case supplant, State and local resources Brustein & Manasevit, PLLC72

73. “What would have happened in the absence of the Federal funds???” Brustein & Manasevit, PLLC73

74. Auditors’ Tests for Supplanting OMB Circular A-133 Compliance Supplement Brustein & Manasevit, PLLC74

75. Auditors presume supplanting occurs if Federal funds were used to provide services... Required to be made available under other Federal, State, or local laws Paid for with non-Federal funds in prior year Same service to non-Title I students with State/local funds Brustein & Manasevit, PLLC75

76. School Choice and Supplemental Educational Services (SES) Brustein & Manasevit, PLLC76

77. Brustein & Manasevit, PLLC77 Equitable Services for Private School Students

78. 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, PLLC78

79. Consultation (cont.) Consultation must include: 1.How the LEA will identify the needs of eligible private school children 2.What services the LEA will offer 3.How and when the LEA will make decisions about the delivery of services 4.How, where, and by whom the LEA will provide services 5.How the LEA will assess the services and use the results of that assessment to improve Title I services 6.The size and scope of the equitable services 7.The method or the sources of poverty data used 8.The services the LEA will provide to teachers and families of participating private school children MUST document consultation was timely and meaningful! Brustein & Manasevit, PLLC79

80. Consultation must include: (cont.) Discussion about use of 3 rd Party Providers Must consider private school officials’ views – but LEA decides whether it will use 3 rd Party Providers – If LEA says no, LEA must provide written analysis of why officials’ opinion rejected Must be a written record if private schools want to appeal to SEA about LEA decision Brustein & Manasevit, PLLC80

81. Consultation: Written Affirmation LEAs must obtain written affirmation from private school officials stating timely and meaningful consultation occurred Signed by officials from each school with participating children or representative Send to SEA and maintain in LEA’s files Example in Guidance Brustein & Manasevit, PLLC81

82. Deriving Instructional Allocation General Formula: Based on number of: 1.Private school students 2.From low-income families 3.Who reside in Title I-participating public school attendance areas Brustein & Manasevit, PLLC82

83. Private school students also must get equitable share of some set-asides: Off the top for district-wide instruction Off the top for parental involvement Off the top for professional development Brustein & Manasevit, PLLC83

84. Administrative Costs Off the top!! – Before public and private school allocations are calculated LEA administrative costs for public and private school program Third party contractors (private companies) administrative costs Brustein & Manasevit, PLLC84

85. Agostini: Safeguards Services may be on-site at private school, with safeguards Guidance: Need not remove religious objects from room – Must have safeguards in place to ensure NOT promoting religion Neutral, secular and non-ideological Brustein & Manasevit, PLLC85

86. QUESTIONS??? Brustein & Manasevit, PLLC86

87. Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials 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, PLLC87