Statement of Board of Education President Thomas M. Jackson, Jr.
Regarding USED Response to Virginia’s Request
for NCLB Flexibility

Board of Education President Thomas M. Jackson, Jr., released the following statement today regarding decisions made this week by the United States Department of Education (USED) in response to the Board’s requested waivers from certain provisions of the No Child Left Behind Act of 2001 and amendments to Virginia’s accountability plan:

“The U.S. Department of Education has taken more than five months to act on requested amendments to Virginia’s accountability plan that, for the most part, have already been granted to other states. This continued disrespect toward a state that has faithfully implemented the No Child Left Behind Act of 2001 (NCLB) is bewildering.

“USED’s approval of the inclusion of the achievement of high school students on expedited retakes of SOL tests in English and mathematics in the calculation of ‘adequate yearly progress’ ratings for schools and school districts represents a small step toward rational accountability. That Virginia has had to battle so long for this measure of what Washington calls ‘exceptional flexibility’ illustrates the depth of federal intrusion into state accountability decisions under NCLB.

“Under USED’s previous interpretation of the law as it applies to Virginia, more than half of the commonwealth’s school districts have been identified as in improvement, including divisions with consistently high levels of student achievement and national reputations for excellence. Limiting division-level sanctions to school systems that do not meet objectives in the same subject across all grade spans will reduce this wholesale misclassification and penalization of high-performing and improving Virginia school divisions.

“Secretary Margaret Spellings raised great expectations earlier this year with her promise of a new, workable, common-sense approach to implementing NCLB. The limited flexibility for Virginia described above represents, at best, a halting step toward the fulfillment of this promise and is especially disappointing given the commonwealth’s demonstrated commitment to accountability. At the same time, Washington has rejected amendments that would have allowed Virginia to focus the remedies available under NCLB on students most in need of assistance while minimizing conflicts between the federal law and the commonwealth’s successful Standards of Learning (SOL) accountability program.

“It has been well documented that the poorest and lowest achieving students in Title I schools are often the least likely to request transfers to higher performing schools. Allowing schools to reverse the order of NCLB sanctions and provide tutoring during the first year of improvement status would result in students receiving academic assistance sooner rather than later, while providing time for the development of orderly and effective school-choice plans. The inability of USED to reach a decision on this issue is mystifying and suggests that USED remains largely deaf to the practical experience of states.

“The commonwealth presented a modest list of proposals based on lessons learned during the three-and-a-half years since NCLB became law. These amendments had the support of Virginia’s school divisions, which have made great strides since 1995 in raising student achievement and narrowing the achievement gap. By ignoring this progress and rejecting most of Virginia’s proposed amendments, the United States Department of Education continues on a course that undercuts support for NCLB in the commonwealth and encourages confrontation.”

Darla Marburger, deputy assistant secretary for policy, Office of Elementary and Secondary Education, U.S. Department of Education, in a telephone conversation late Monday with Virginia Deputy Superintendent Patricia Wright, said USED would permit the following changes in the commonwealth’s NCLB implementation plan, also known as Virginia’s accountability workbook:

• Students with disabilities and students and limited English proficient (LEP) students who earn diplomas in the time period specified by their Individualized Education Plan or LEP team will be considered as graduating on time.
  
  
• Virginia may count students who pass expedited retakes of high school Standards of Learning (SOL) tests as proficient in calculating AYP ratings.
  
  
• Virginia may establish a minimum “n” for schools, school divisions, and the state, of 50 or 1 percent with a cap of 200 students.
  
  
• Only school divisions that fail to make AYP in the same subject area across all grade spans for two consecutive years will be identified as in need of improvement.

Virginia’s request to target public school choice and tutoring on students in subgroups that do not make AYP was rejected, as was a proposal to limit federal sanctions to those schools in which students in the same subgroup fail to demonstrate progress in reading and or mathematics for two consecutive years. USED also rejected Virginia’s request to count as proficient students with disabilities who demonstrate a year’s worth of academic growth on instructional level tests. USED also rejected Virginia’s request to consider “other academic indicators” in calculating AYP ratings only when a school or school division falls under NCLB’s “safe harbor” provision.

USED has yet to rule on Virginia’s proposal to permit Title I schools to reverse the order of sanctions and provide tutoring instead of public school choice during the first year of school improvement. USED deferred until further study decisions on Virginia’s request for additional flexibility in the testing of LEP students and the commonwealth’s request to establish separate achievement benchmarks for student subgroups based on actual student performance.

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