"But if it is believed that these elementary schools will be better managed by...any other general authority of the government, than by the parents within each ward [district], it is a belief against all experience." --Thomas Jefferson

Thursday, August 7, 2014

NCLB Waiver Letter to the State Board

Dear State School Board Members:

I can't thank you enough for taking the time to look at this important issue from all sides.  Regardless of the outcome, I appreciate the time, the thoughtfulness, and the deliberation that you have given to this issue.

I have read all of Utah's current ESEA Waiver, the Legal Analysis from the Attorney General, as much as I have been able to of the No Child Left Behind Act, and the bill sponsored by Senator Dayton in 2005, as referenced in the report from the Attorney General.  I hope that my comments will be of benefit to you.

I do not support renewing the ESEA Waiver.  The Waiver, as I explained in my comments in July, transfers power from our elected Congressional leaders to unelected people in the US Department of Education.  I believe we should always be wary when we transfer power from elected representatives to unelected people. 

Furthermore, NCLB specifically prohibits some of the assurances that the Dept of Ed (USED) is requesting as a condition of the Waiver.  For example, Sec. 9527 that is the trigger for Sen. Dayton's legislation requesting a waiver, prohibits the federal government from mandating curricula, standards, etc. 

It says: "Notwithstanding any other provision of

Federal law, no State shall be required to have academic content

or student academic achievement standards approved or

certified by the Federal Government, in order to receive assistance

under this Act."

I would humbly suggest that the requirement to have college- and career-ready standards 'common to a significant number of states' is a specific set of achievement standards, i.e. Common Core. Additionally, Option B requires a particular process that is external to state law for adopting 'acceptable' standards under the Waiver.  As such, I would submit that a process such as this, dictated by the USED, is a de facto 'certification' of standards.  In short, to adopt this Waiver, would effectively trigger Sen. Dayton's law to request a Waiver from the Waiver, as it requires a waiver request anytime Sec. 9527 is infringed upon. 

Additionally, the NCLB Waiver section does not contain any authorization for the USED to make additional requirements of states as part of the waiver process that are not already contained in the NCLB law, itself.  The requirements for the waiver are contained in Sec. 9401 and outline the following:

1. An SEA, LEA or Indian Tribe may apply for a waiver

2. Identify the programs affected and what we are asking to be waived

3. Explain how the waiver will a) improve quality of instruction and b)improve academic achievement of students

4. Describe specific, measurable goals and how those goals will be measured under the waiver

5. Explain how the waiver will allow the SEA, LEA, Indian Tribe to obtain those goals

6. Describe how affected schools will continue to provide assistance to the populations served while under the waiver.

There are no legal requirements for any additional assurances that can dictate teacher evaluations, standards, or assessment methods.  In fact, from reading NCLB, it appears that it was assumed the state would modify its plan on a regular basis.  As such, the Secretary is "shall not have the authority to require a State, as a condition of approval of the State plan, to include in, or delete from, such plan one or more specific elements of the State's academic content standards or to use specific academic assessment instruments or items."  The argument about the standards is the same as referenced above.  Additionally, this section discusses assessment instruments.  The assessment piece is one of the assurances, as well. 

Finally, it appears that the Waiver process is open to the State Board or any LEA at any point in time, and is supposed to be 'developed and submitted' by the SEA or LEA.  I would suggest that for us to adopt the Waiver provided to us by the USED (and just fill in the appropriate information), the Waiver does not meet the requirement of being developed by the SEA or LEA. 

I would, respectfully, request the following:

1. Please do not renew the current waiver.

2. Please either write a new waiver, specifically developed by the SEA or modify the existing Waiver application to remove the assurances.  All assurances would be preferable, but at the very least, those prohibited by the law, itself in Sec. 9527.

3. Please make a formal request/resolution of our legislature to restore the $26 million that will be made inflexible should the new waiver not be approved. 

4. Please make a formal request/resolution of our Congressional delegation to repeal or replace NCLB as soon as possible.

I recognize the biggest concern many of you have in not approving the waiver is the impact it will have on funding in our local schools.  As a local school board member, I cannot thank you enough for this.  It seems to be very rare that our local concerns rise to a higher level.  It is so very much appreciated!  However, I believe it to be far more important to be out from under the requirements being dictated to us, especially in regards to teacher evaluations being tied to testing, approval of our testing instruments, as well as our standards.  Alpine School District was able to finish the year with nearly $10 million in fund balance in our general fund.  20% of our Title 1 monies would be $1.8 million.  As such, while I would welcome the opportunity to use that money to reduce class sizes or to pay for more aides, I believe our children, parents, and teachers will be better served with more local control and accountability that will come in the absence of the current waiver.  I acknowledge that there will be difficulties, and going the waiver route would be easier.  However, if we just go along now, how do we know next year's waiver will not be more egregious? 

If we are able to receive a waiver without committing to the assurances, that would be fantastic!

Thank you so very much for your service!


Wendy K. Hart
Mother of 3
Alpine School District, Board of Education, representing Alpine, Cedar Hills, and Highland
Highland, UT

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