Per this differentiated consequences pilot and previous pilots Dean Millot is right that there is waiver authority in federal policy but this is a pretty, shall we say, “robust” use of it and does raises serious precedent questions going forward and rightly alarms separation of powers types as part of a larger blurring of the lines between legislative and executive functions. Usually the waiver process is for more picayune stuff. And Kevin Carey’s point, a view I share, is that so far these things have all keyed off of one variable: Whether interest groups liked them or not.
Kevin also notes that: For readers not steeped in NCLB arcana–and really, what’s the matter with you–Secretary of Education Margaret Spellings announced that she would allow 10 states to change what they do with schools that fail to make “adequately yearly progress” under NCLB. As written in the law, AYP is binary standard–you make it or you don’t, and the law doesn’t distinguish between schools that miss the cut with one group of students by an inch and those that miss with all their students by a mile. NCLB critics say this is simplistic and unfair, and they have a point. A somewhat overblown point, since states have adopted a range of statistical gimmicks to prevent schools from missing AYP by any amount, and because you have to miss AYP for multiple consecutive years for consequences to really kick in. But a point nonetheless.
Well, you do make “adequate yearly progress” (AYP) or you don’t but there is a “safe-harbor” provision that actually does distinguish to some extent between schools missing by a little or a lot. And, although after two-and three-years of missing the targets some “automatic” consequences, — public school choice and tutoring for students — do kick in for such schools, beyond that the law gives states a fair amount of latitude to differentiate what happens to these schools. The problem is that there hasn’t been a lot of innovation around all that at all and a lot of evasion, which is one reason the pilot is a good idea on the policy side of things. And Kevin is right about the gimmicks, and has done a great job documenting them, but that owes less to the specifics of the policy than the more general dynamics of a law like No Child Left Behind.