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Waive the Waivers
This piece was originally published as part of Fordham's 2016 Wonkathon in response to the question: What are the "sleeper provisions" of ESSA that might encourage the further expansion of parental choice, at least if advocates seize the opportunity?
ESSA provides states with the opportunity to incentivize school districts to expand parent choice. States now have the freedom to relax their NCLB-driven state laws while incentivizing local authorities to go about improving choice in their school systems.
ESSA replaced NCLB, but the law of the land leading up to reauthorization was shaped by the Obama administration’s waiver program. The Department of Education used those waivers to compel states to pass a number of rather prescriptive laws, which tied the hands of districts in some policy areas. Perhaps the most onerous requirement was performance-based teacher evaluations, which—while well intentioned—were also highly constraining.
ESSA cleared the regulatory deck established by the waiver program, but by and large, the state laws that passed because of those waivers are still on the books. To unbind districts from those laws, states can now do one of three things: repeal the waiver-driven laws, weaken them, or waive them with the condition that districts do something awesome. The latter is the sleeper policy in ESSA.
Several states have already set up waiver processes for laws that might or might not have been NCLB-waiver driven. For example, Arkansas allows districts to seek waivers from state law in order to gain the same flexibilities that charter schools have—so long as they have at least one open enrollment charter school within their boundaries. Texas (which didn’t receive an NCLB waiver) has a similar package. Georgia has several to pick from.
Districts looking to escape obtrusive state law will have an opportunity to improve their choice environments under ESSA. States could incentivize districts to pursue common enrollment, site-based allocation, district/charter collaboration, or more user-friendly parent information systems in exchange for relief from the NCLB-waiver-driven state teacher evaluation or accountability regimens. Such flexibility is even more promising in that it provides states with the political leverage to bring past education adversaries together. States could broker compromises between, say, union and charter leadership to trade statewide performance-based teacher evaluations for local expanded choice.
NCLB waivers, in an effort to push strong school improvements nationwide, led to states putting up walls to local innovation. ESSA allows states to turn those walls into walkways to the next generation of expanded parent choice in school systems.
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