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The Massachusetts Board of Elementary and Secondary Education

Elementary and Secondary Education Act (ESEA) Flexibility Waiver Request

Members of the Board of Elementary and Secondary Education
Mitchell D. Chester, Ed.D., Commissioner
October 14, 2011

This memorandum is designed to preview our October 24 and 25 discussion of the Elementary and Secondary Education Act (reauthorized in 2001 as the No Child Left Behind Act, or NCLB) flexibility waiver opportunity. Our Monday evening special session (5-7 p.m.) will be devoted to this conversation and we will continue the discussion during the Tuesday business meeting. Enclosed with this memorandum is a handout that was produced by the U.S. Department of Education (USED) to provide an overview of the waiver opportunity. I expect to provide you with additional information in advance of the October 24 session.


My interest in pursuing a waiver is propelled by the opportunity to build a unitary accountability system. Currently, we provide two assessments of each school and district: one based on the Massachusetts five-tier system and a second based on the federal Adequate Yearly Progress (AYP) metric. The AYP metric is a blunt instrument - the school either "has met AYP" or "has not met AYP" - whereas our state system provides grades of classification, with Level 1 signaling strong performance and Level 5 signaling unacceptable performance.

Under state law, we identify up to four (4) percent of our schools as Level 4 (underperforming) or Level 5 (chronically underperforming), which triggers intensive intervention and support - actions that are possible at this scale. In addition, we identify Level 4 and Level 5 school districts. Under the federal NCLB law, almost 1,400 Massachusetts schools (81 percent) and approximately 350 districts (90 percent) currently are failing the AYP criteria. The sheer volume of schools and districts falling short of the federal standard renders AYP of little value in identifying those that are most in need of resource-intensive intervention.

The high proportion of schools and districts that are missing AYP is a function of a target that is approaching 100 percent proficient - school-wide and by student group. The high proportion missing AYP is not reflective of the proportion of schools that are stagnant or faltering; in fact, the vast majority of schools in the Commonwealth are achieving at much higher levels than four or five years ago. As educators and others increasingly judge the AYP standard to be unreasonable and unattainable, AYP is losing its credibility and impact1. Further, the collective message of the Commonwealth and federal accountability systems increasingly generates greater noise than signal, as more and more schools and districts are being judged inadequate under AYP but not under the Massachusetts tiered system.

To be clear, I have no interest in watering down our standards and expectations. The high bar that we have set in Massachusetts is a key element of our success over time. My interest in pursuing a waiver is driven by a belief that good teaching and administrative leadership make a difference, and that a well-designed accountability system will support the efforts of teachers and administrators - and that the current AYP criteria detract from a coherent system. Continuous improvement of our schools is within the reach of our educators - as evidenced by our track record over the past decade plus. I am dedicated to bringing forward a system to replace NCLB that sets high standards for student learning, calls out and remedies performance gaps, expects continuous improvement of schools and districts, rewards strong performance, and aggressively addresses low-performing schools and districts.

NCLB Waiver Flexibility Opportunity

The USED is offering each state education agency the opportunity to request flexibility from specific requirements of NCLB. This flexibility is intended to build on and support the significant state and local innovations and reform efforts already underway in areas such as developing college- and career-ready standards and assessments; implementing systems of accountability and support for schools and districts; and evaluating and supporting educator effectiveness. Such efforts were not anticipated when NCLB was enacted over a decade ago, and now many of the NCLB requirements have unintentionally become barriers to state and local implementation of forward-looking reform efforts. Most notably, the flexibility would provide relief to states, districts, and schools from the Act's original requirements around adequate yearly progress.

The flexibility opportunity is not competitive - all states that submit strong, comprehensive plans can receive approval. USED has indicated that it sees the waiver review process as an "iterative" one, that is, it will work with a state until the application can be approved. Waivers will be approved through the 2013-14 school year, after which the Commonwealth may request an extension of the flexibility.

Massachusetts' Application

We have reviewed background materials provided by USED, participated in webcasts, and attended briefing sessions held in Washington, D.C. on the specifics of the flexibility measures and state plan requirements. Based on the information gained from these activities, I believe that applying for a waiver will be in the best interest of the state and our schools and districts. Further, I believe we are very well positioned to meet the rigorous elements within the four required waiver principles, which are:

  • College- and Career-Ready Expectations for All Students
  • State-Developed Differentiated Recognition, Accountability, and Support for Schools and Districts
  • Supporting Effective Instruction and Leadership
  • Reducing Duplication and Unnecessary Burden

These principles align well with the statewide reform efforts we currently have underway. Our five-tier system for accountability and assistance, the Commonwealth's Achievement Gap Act provisions, our aggressive strategies for turning around low performing schools and districts, our new educator evaluation regulations, and our national leadership in high academic standards put us in good stead to present a compelling application.


I am seeking the Board's endorsement on October 25 so that Massachusetts can meet the first federal waiver request due date of November 14, 2011. We have already begun an intensive stakeholder outreach effort - I will update you on the effort at our October 25 meeting. USED is planning on reviewing the first submissions quickly and having approvals in place by mid-winter. This timeframe will fit with many districts' spring planning activities for the upcoming school year, and with our grant application cycle for 2012-13 state and federal grants - particularly since one of my goals is to review the fiscal flexibility waiver provisions carefully in order to leverage the use of federal funds with available local and state funds to address our priorities for student achievement. The next opportunity to apply will not be until mid-winter, which could put the approval process into late spring or early summer. I believe that this would be too late to allow for significant changes for the upcoming school year.

This opportunity holds great promise to strengthen our work to develop a unified system of accountability and support that improves teaching and learning in the Commonwealth. I have enclosed materials that further explain the ESEA flexibility waiver program and look forward to our discussion at the October Board meetings.


Download PDF Document  Download PowerPoint File
ESEA Flexibility: NCLB Waiver Discussion (October 24, 2011 PowerPoint)

Last Updated: November 3, 2011
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